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The International Law Situations at the Naval War 
College during the summer course of 1902 were under 
the immediate direction of Mr. George Grafton Wilson, 
Professor in Brown University, whose name is already 
known to the service through previous papers prepared 
by him for the college. 

As last year by Mr. Moore, this year the situations 
were set by Mr. Wilson, and tentative solutions offered 
by the committees into which the officers in attendance 
are divided for the college work. Throughout the sev- 
eral law periods during the summer there were general, 
and frequently long-continued, discussions of the solu- 
tions by the officers, making the subject a living one; 
the more so, that several of the situations were of late 
occurrence, which the officers concerned have sent to 
the college for consideration. It is hoped that so profit- 
able a practice Will be continued by the officers afloat. 

F. E. Chadwick, 

Captain, U. S. N., President. 
Naval War College, 

Newport, R. J., November 19, 1902. 




Situation I — Submarine telegraphic cables in time of war 7 

Solution 7 

Notes 8-20 

Protest against hostile use 8 

Responsibility for hostile use 9 

Grounds for interruption of cable service 10 

I a I Blockade 10 

(6) Contraband 10 

(c) Unneutral service 11 

Interruption a ground for damages 15 

Parliamentary committee report 17 

General conclusion in regard to interruption of service 19 

Situation II — Asylum on ships of war 21 

Solution 21 

Notes 21-27 

Arguments in favor of promising asylum 21 

Discussion of Naval Regulations 21 

Hall on representatives of a titular government 2:i 

Secretary Olney on representatives of a titular government 23 

Instructions of Secretary Fish 24 

Chilean instructions, 18!»1 25 

Arguments against promising asylum 26 

Secretary Hay's position 2»"> 

No promise of asylum on ship of war 27 

Situation III — Waters of leased territory 28 

Solution 28 

Notes 28-35 

Status of leased territory 28 

Lease of Chinese territory to Germany 29 

Transfer of jurisdiction 30 

Japanese opposition 31 

Nature of lessee's authority 32 

Attitude of various states :'.:! 

Consular authority in leased territory M 

Authority in regions not under lessee's flag :5"> 

Situation IV — Port of a home country 36 

Solution 36 

Notes 36-48 

British neutrality regulations '■'>'> 

Status of Manila August 20, 1898 :*7 

Point of view of Army 38 

Point of view of Navy 38 

The President's position 39 

War Department opinion 40 

Effects of military occupation II 

Military occupation and conquest 45 

Grounds of commander's protest 4t> 

What constitutes a " port of a home country " 47 




Situation V— Neutral vessels in belligerent's port 49 

Solution 49 

Notes 49-66 

The war between Chile and Peru 49 

The Franco-Chinese difficulties 51 

Time allowed for departure 52 

Conduct of hostilities 53 

Liabilities of neutrals 54 

Angary 54 

Necessities of war govern 56 

Situation VI — Interference by insurgents with commerce 57 

Solution 57 

Notes ra-Ki 

Declaration of Paris, blockade 57 

Definitions of blockade 58 

Blockade a war measure GO 

Treatment of insurgent ships 61 

English attitude toward insurgency 62 

Insurrection in Chile, 1891 63 

Insurrection in Brazil, 1893-94 65 

No " insurgent blockade " 66 

Attitude of United States 67 

Insurgency may affect domestic laws 68 

Hostilities cognized 69 

Position of Admiral Benham 69 

Haitien insurrection of 1902 70 

Admission of insurgency purely domestic act 71 

Insurgent status not international 72 

Conclusions of Institute of International Law, 1901 1 73 

Conclusions in regard to interference by insurgents with commerce 74 

Note containing correspondence and letter of Secretary Hay on so-called "insur- 
gent blockade " _' 75-83 

Situation VII — Pacific blockade 84 

Solution 84 

Notes 84-97 

General opinions 84 

Should not affect third states '_ 87 

Blockade of Crete, 1897 88 

Attitude of United States, 1897 90 

liaising blockade of Crete, 1898 91 

Opinions on blockade of Crete 92 

Franco-Chinese operations, 1884 94 

Pacific blockade should not affect third states 96 

Situation VIII — Siege and maritime commerce 98 

Solution 98 

Notes 98-106 

Telegram quoted 93 

Nature of siege 99 

(►pinions of writers 100 

Blockade and siege 102 

Halleck on sieges 103 

Effect of siege on maritime commerce 104 

" Departure from neutral duty " 105 


While a state of war exists between the United States 
and foreign state X, it is found that a submarine tele- 
graphic cable owned by a neutral company and connect- 
ing hostile state X with neutral state Y is used for the 
transmission of dispatches hostile to the United States. 

The United States naval officer in command of the fleet 
cruising near protests to neutral state Y against such 
use of the cable. 

The authorities of state Y claim that they have no 

It is not possible for the United States vessel to inter- 
rupt the cable within the three-mile limit of hostile state 
X. The cable is, however, grappled beyond the three- 
mile limit in the high sea, and by order of the command- 
ing officer is cut. 

The neutral owners claim damages from the United 
States for injury to the cable and for interruption of 
service, alleging among other reasons in support of the 
claim that the act of the commanding officer in cutting 
the cable was contrary to Article V of the Naval War 
Code of the United States. 

Was the action of the officer proper ? 


1. The action of the officer in protesting against the 
hostile use of the cable connecting enemy state X and neu- 
tral state Y was proper action. Such action is desirable 
whenever possible without undue risk, of which risk the 
officer himself must judge. This does not imply an ob- 
ligation to give such official protest or responsibility in 
case such protest is not made. 

2. The authorities of a neutral state may assume or 
decline to assume responsibility for a cable connecting 
the neutral with a belligerent state. 

3. The cable service is to be considered, when hostile, 
in the category of unneutral service and the penalties 
should be determined accordingly. 



4. The neutral owners have no ground for claim for 
damages for injury to the cable or for interruption to 

5. The Naval War Code of the United States makes 
no provision for such a case, but practice and general 
principles justify the action of the officer in cutting the 
cable anywhere outside of neutral jurisdiction. 



The protest. — The propriety of the first act of the com- 
manding officer in entering a protest against the use of 
the cable can be affirmed ; the question of his obligation 
to do so must depend upon the policy of the United 
States and the urgency of cutting off the communica- 
tion. It is sufficient to say that at the present time 
neither international law nor national policy makes such 
a protest obligatory. 

The action of Brazil in 1898 * and the occasional action 
of other neutral countries show a drift toward the 
assumption of governmental authority over such cable 
service as in time of war may involve violation of the 
strict neutrality of neutral territory. The development 
of this tendency to assume authority would give a basis 
for judgment of the obligation to give notification before 
cutting a cable. 

The rule in regard to obligation might be stated as 
follows : In proportion as the neutral government assumes 
responsibility for the communication by cable between 
its territory and belligerent territory, in that proportion 
is it the obligation of the belligerent to notify the neutral 
(whenever possible without serious danger to the bellig- 
erent himself) that the belligerent proposes to interrupt 
freedom of communication by cable. The cable should 
then be used only under such restrictions as may be 

'Neutrality Regulations, Brazil, April 29, 1898, Art, V: "It is 
prohibited citizens or aliens residing in Brazil to announce by tele- 
graph the departure or near arrival of any ship, merchant or war, 
of the belligerents, or to give to them any orders, instructions, or 
warnings, with the purpose of prejudicing the enemy." (Proclama- 
tions and decrees during the war with Spain, p. 14. ) 


agreed upon by the belligerent and the neutral. In all 
such cases the action may lead to cutting in case the 
belligerent is not satisfied with the restrictions proposed, 
or to the sealing and absolute prohibition of the service 
in case the neutral is not satisfied with the conditions 

The development of a policy of national responsible 
control is advocated as the best method for securing the 
end advocated by all, "the complete submission of the 
enemy at the earliest possible period with the least ex- 
penditure of life and property." 1 National control and 
guarantee of neutrality in time of war would be for the 
advantage of owners during war and for the world at 
large on return of peace, provided always a satisfactory 
means for assuring neutrality can be found. 

The responsibility of state Y. — The general principles 
of jurisdiction or the right to exercise state authority 
undoubtedly carries with it the right to control cables 
so far as is necessary for the protection of state Y or 
the maintenance of its sovereignty, particularly so far 
as those cables are within the limits of the jurisdiction 
of the state. 

From the relation of a state to a cable, state Y is 
doubtless at liberty to disclaim responsibility for a cable 
already constructed so far as its international relations 
are concerned. It may, however, as in the case of Brazil, 
by Article V of the proclamation of neutrality in 1898, 
prohibit the use of a cable or other means of telegraphic 
communication for the aid of either belligerent by a do- 
mestic regulation. 2 Brazil would thus assume a moral 
obligation to enforce its proclamation. This would not 
carry international responsibility, but merely shows that 
a state may assume of its own accord some supervision 
of its cable service. It is not, however, a violation of 
neutrality not to assume any control or responsibility 
for private lines. 

It has been held, however, that the state does control 
absolutely the landing of cables upon its shores, and that 
it would therefore be a violation of neutrality to permit, 

1 Naval War Code of the United States. 

2 Proclamations and decrees during- the war with Spain, p. 14. 


during the continuance of the war, a new cable to be laid 
within its jurisdiction for military purposes which should 
connect its shores with one of the belligerents. 1 

Another phase of cable control is seen in the action of 
the company in sealing the cable at Hongkong to avoid 
all complications. This opens the question of responsible 
sealing as a means of avoiding injury to cable property, 
which in itself is of the greatest benefit to the world. 
If actually sealed by a responsible party the cable has 
nothing in its nature to render it necessarily confiscable. 
All that a belligerent wishes in regard to hostile cables 
is that they shall not be used at all or shall not be used 
for hostile purposes after the belligerent has once been in 
position to prevent such use. Outside of neutral juris- 
diction a belligerent might of course with propriety cut 
a cable connecting a blockaded port of the enemy. 

There is equally no question that the belligerent has 
no right to demand that all cables connecting the enemy 
state with neutrals shall be sealed or otherwise controlled, 
provided he is in no position to enforce his demands by 
himself interrupting the cable. 

The grounds for cutting the cable. — In the case sub- 
mitted the neutral state Y, as it is competent to do, 
declines to assume any responsibility. This places the 
cable upon the basis of private property. 

(a) Cables in time of blockade. — In this case there is no 
statement that a blockade exists and that the service of 
the cable is interrupted on that account. In regard to 
such interruption there would be no question. Fauchille' 
maintains that when a port is blockaded so that a neu- 
tral can not communicate with it, there is no doubt that 
the blockading belligerent can interrupt the cable as 
he would a dispatch boat. This position is generally 
admitted. • 

(b) Cobles as contraband. — To bring such use of 
submarine telegraphic cable under the category of con- 
traband is inconvenient and in many respects unfortu- 
nate. The tendency is to limit contraband to goods and 

'See Wilson, Submarine Telegraphic Cables, p. 18, Naval War 
College Lectures, 1901. Also, For. Rel. 1898, p. 976; 22 Opin. Atty s . 
Gen., pp. 13, 815. 

J Dn Blocus Maritime, p. 248. 


to determine their category as contraband or noncontra- 
band by their nature and destination. To regard a cable 
between an enemy and a neutral as contraband because 
of its possible hostile use is to resort to a position mak- 
ing needful a course of reasoning unnecessarily com- 
plex and confusing. The action of the officer, if justifi- 
able at all, may rather be justifiable on other grounds 
than that of violation of blockade or of seizure as 

(c) Cables and unneutral service. — The difference 
between the carriage of contraband and the aid afforded 
by the transmission of information was early recognized. 
Lord Stowell, in the case of the Atalanta in 1808, said: 

"If a war intervenes and the other belligerent prevails 
to interrupt that communication (between mother country 
and colony), any person stepping in to lend himself to 
effect the same purpose, under the privilege of an osten- 
sible neutral character, does in fact place himself in the 
service of the enemy state, and is justly to be considered 
in that character. Nor let it be supposed that it is an 
act of light and casual importance. The consequence of 
such a service is indefinite, infinitely beyond the effect of 
any contraband that can be conveyed. The carrying 
of two or three cargoes of stores is necessarily an assist- 
ance of limited nature; but in the transmission of dis- 
patches may be conveyed the entire plan of the campaign 
that may defeat all the projects of the other belligerent 
in that quarter of the world. * * * The practice has 
been, accordingly, that it is in considerable quantities 
only that the offense of contraband is contemplated. 
The case of dispatches is very different ; it is impossible 
to limit a letter to so small a size as not to be capable 
of producing the most important consequences in the 
operations of the enemy. It is a service, therefore, which, 
in whatever degree it exists, can only be considered in 
one character, as an act of the most noxious and hostile 
nature." 1 

This opinion of the great English jurist, rendered early 
in the nineteenth century, shows that the transmission 
of dispatches of varying character can not properly be 

1 6 C. Rob. , 440, 454. 


put in the same category with contraband because so 
different in nature and results. . 

Dana, in note 228 to Wheaton, speaking of the carry- 
ing of hostile persons or papers in contrast to contraband, 
says : 

"But the subject now under consideration is of a 
different character. It does not present cases of prop- 
erty or trade, in which such interests are involved, and to 
which such considerations apply, but simply cases of 
personal overt acts done by a neutral in aid of a bellig- 
erent. Suppose a neutral vessel to transmit signals 
between two portions of a fleet engaged in hostile com- 
bined operations, and not in sight of each other. She is 
doubtless liable to condemnation. It is immaterial 
whether these squadrons are at sea or in ports of their 
own country or in neutral ports, or how far they are 
apart or how important the signals actually transmitted 
may be to the general results of the war, or whether the 
neutral transmits them directly or through a repeating 
neutral vessel. The nature of the communication estab- 
lishes its final destination and it is immaterial how far 
the delinquent carries it on its way. The reason of the 
condemnation is the nature of the service in which the 
neutral is engaged." 

Hall l says : 

"With the transport of contraband merchandise is 
usually classed analogically that of dispatches bearing 
on the conduct of the war, and of persons in the service 
of a belligerent. It is, however, more correct and not 
less convenient to place adventures of this kind under a 
distinct head, the analogy which they possess of the car- 
riage of articles contraband of war being always remote. 
They differ from it in some cases by involving an inti- 
macy of connection with the belligerent which cannot 
be inferred from the mere transport of contraband of 
war, and in others by implying a purely accidental and 
almost involuntary association with him. The} 7 " are in- 
variably something distinctly more or something dis- 
tinctly less than the transport of contraband amounts to. 

'Int. Law, 4th ed., p. 697. 


When they are of the former character they may be un- 
dertaken for profit alone, but they are not in the way of 
mere trade. The neutral individual is not only taking 
his goods for sale to the best market, irrespectively of 
the effect which their sale to a particular customer may 
have on the issue of the war, but he makes a specific 
bargain to carry dispatches or persons in the service of 
the belligerent for belligerent purposes; he thus person- 
ally enters the service of the belligerent, he contracts 
to perform acts intended to affect the issue of the war, 
and he makes himself in effect the enemy of the other 

Lawrence, in his third edition, 1 says: 

"In truth, between the carrying of contraband and 
the performance of what we may term unneutral service 
there is a great guif fixed." 

And again, after further discussion — 

"We are now in a position to distinguish clearly be- 
tween the offense of carrying contraband and the offense 
of engaging in unneutral service. They are unlike in 
nature, unlike in. proof, and unlike in penalty. To carry 
contraband is to engage in an ordinary trading transac- 
tion which is directed toward a belligerent community 
simply because a better market is likely to be found there 
than elsewhere. To perform unneutral service is to in- 
terfere in the struggle by doing in aid of a belligerent 
acts which are in themselves not mercantile but warlike. " 2 

The acts generally regarded as in the category of un- 
neutral service have been enumerated as : 

(1) The carriage of enemy dispatches. 

(2) The carriage of certain belligerent persons. 

(3) Aid by auxiliary coal, repair, supply, or transport 

(4) Knowing cooperation in the transmission of certain 
messages and information to the belligerent. 

Knowing cooperation in the transmission of certain 
messages for the belligerent renders the ship liable to 
penalty. Such an act as the repetition of signals would 
fall in this class. 

1 Int. Law, p. G24. 2 P. 633. 


Iii cases where vessels are engaged in unneutral serv- 
ice the ordinary penalty is the forfeiture of the vessel so 
engaged. It is held that — 

"Submarine telegraphic cables between a belligerent 
and a neutral state may become liable to censorship or 
to interruption beyond neutral jurisdiction if used for 
hostile purposes. A neutral vessel engaged in laying, 
cutting, or repair of war telegraph cables is held to be 
performing unneutral service." 1 

Capt. C. H. Stockton, U. S. N., says: "Besides the 
contraband character of the material of a telegraph cable, 
in use or en route, as an essential element of belligerent 
communication which renders it liable to seizure any- 
where out of neutral territory, there is another phase of 
this question, and that is in regard to the nature of the 
service afforded by such a communication by a neutral 
proprietor to a belligerent. 

' ' This service is in the nature of both an evasion of a 
blockade, and, what has been termed of late years, of 
unneutral service. It does not matter in this phase 
whether the cable be privately or state owned so far as 
the technical offense is concerned, though the gravity 
and consequences are naturally much more serious in 
the latter case. Let us take, as an instance, the case of 
a blockaded or besieged port, as Havana and Santiago 
were during the late hostilities. The communication of 
information, or of dispatches, or of means of assistance 
which can be made by such means, is an unneutral serv- 
ice, and would resemble also the violation of blockade by 
a neutral vessel carrying dispatches, the capture of which 
on the high seas outside of territorial jurisdiction would 
be a justifiable and indisputable act of war. 

"Extend this to a country or port not blockaded or 
besieged, and you would yet find the cable, owned, let us 
presume, by a neutral, the means of performing the most 
unneutral kind of service, of a nature which, done by a 
ship, would most properly cause its seizure, condemna- 
tion, or destruction by the offended belligerent. * * * 

"When possible, cable communication generally 
should, of course, be kept open for commercial or other 

"Wilson & Tucker Int. Law, p. 310. 


innocent intercourse, and in many cases a government 
censorship can meet the circumstances and requirements 
of the war and prevent injury to a belligerent." ' 

Whatever may have been the opinion of the officer as 
to the ground uj)on which he was cutting the cable, it 
was certainly not an act justified by the principles gov- 
erning the rules in regard to contraband unless the 
interpretation be forced. 

After the notification by the officer no innocent trade 
basis could be claimed, and whatever element of con- 
traband there may have been before notification disap- 
peared when the official protest was made. 

If ship and cargo is liable to seizure for violation of 
blockade after official notification, then the cable is 
liable to interruption by analogy, but it is far better to 
put the use of the cable under such circumstances under 
its proper category, that of unneutral service, where the 
intent of the act rather than accidental circumstances is 
the determining factor in the treatment of the cable. 

There remains possible, after one of the belligerents 
is in position to take control of or interrupt a cable con- 
necting a neutral and the other belligerent, the control 
or censorship of the cable by the neutral in a manner 
satisfactory to the first belligerent, the complete dis- 
continuance of the cable service by sealing or otherwise, 
either by the neutral government or by the owners. 
None of these courses was followed. 

The officer was fully justified in cutting the cable upon 
the ground that it was rendering an unneutral service. 

The claim for damages. — The claim that the officer 
was acting in a manner contrary to article 5 of the Naval 
War Code of the United States can not be sustained. 
This code provides that in time of war, irrespective of 
their ownership, "submarine telegraphic cables between 
the territory of an enemy and neutral territory may be 
interrupted within the territorial jurisdiction of the 
enemy." 2 While the code does not specify further what 
shall be the treatment of a cable connecting an enemy of 

1 Submarine Telegraphic Cables in the Time of War. Proceedings 
United States Naval Institute, Vol. XXIV, 3, p. 453. 
12 Article 5, (b). 


1 ho United States with a neutral and used to transmit 
hostile messages, the United States lias not, in practice, 
regarded the cutting of such a cable outside of neutral 
jurisdiction as in anyway forbidden. It is taken as a 
matter of general acceptance that cables will be cut in 
the high seas. Article XV of the cable convention of 
1884 provided: "It is understood that the stipulations 
of this convention shall in nowise affect the liberty of 
action of belligerents." Lord Lyons, representing the 
British Government, stated that " Her Majesty's Govern- 
ment understands Article XV in this sense, that, in time 
of war, a belligerent, a signatory of the convention, shall 
be free to act in regard to submarine cables as if the 
convention did not exist." The proces verbal of this con- 
vention shows that this was the general opinion of the 
representatives present. The Belgian representative 
interpreted the article as giving by inference the right 
"to cut submarine cables even though they landed on 
neutral territory." This same representative also main- 
tained that "the convention has no effect upon the rights 
of belligerent powers. These rights would be neither 
more nor less extensive after the signature than they are 
now." There can be little doubt that in the opinion of 
these representatives submarine cables beyond neutral 
jurisdiction might be cut by a belligerent and that it 
was the expectation of these representatives that this 
would be freely done in time of war. Captain Squier, 
writing of "The Influence of Submarine Cables upon 
Military and Naval Supremacy," 1 after reviewing the 
operations of the United States in the Spanish war of 
1898, uses such expressions as follows: "It appears that 
the searching for deep-sea cables in the high seas in the 
time of war, without an accurate chart of the location 
of the cables, is a difficult and very doubtful operation ; 
also that submarine cables must in general be interrupted 
near their landing places, where their exact location can 
be determined with certainty. * * * Since subma- 
rine cables are so important a factor in national defense, 
they should be protected both at their shore landings and 

1 Proceedings of the United States Naval Institute, Vol. XXVI, 4, 
pp. 620-G22. 


on the high seas by military and naval force. * * * 
We should be able, at the earliest date, to manufacture 
upon American soil deep-sea cables of the first class ; be 
able to lay, maintain, and repair them in time of peace 
or war, by ships flying the American flag, and be pre- 
pared to adequately protect them upon the high seas 
and at their landing places, by military and naval force." 
This position of Captain Squier was quoted with ap- 
proval in England, June 20, 1001, before the inter- 
departmental committee on cable communications. 1 

The report of this interdepartmental committee on 
cable communications, appointed by Parliament on 
November 20, 1000, was made on March 2G, 1002, and 
distinctly admits that a considerable proportion of the 
cables touching British territory would be cut in time of 
war between Great Britain and a foreign power. It is 
also admitted that this will be so even though proper 
precautions may protect cables within the three-mile 
Limit. The report (p. 15) says: 

"The experience of the Spanish- American war while 
it brings into prominence the important influence which 
submarine cable telegraphy exercises in maritime war- 
fare, also shows how large a part is played by chance in 
cable-cutting operations. We are convinced, however, 
that there is no serious physical difficulty in cutting 
cables, and that on the outbreak of war cables may be cut 
either in shallow water without, or in deep water with, 
special appliances. While, therefore, it is generally 
advisable that cables should be landed at fortified posi- 
tions, where such exist, in order that the instruments 
and operating stations may be under protection, we 
would point out that the importance of fortifying the 
shore ends may be easily exaggerated, because the at- 
tempt to break the cable will probably be made at a con- 
venient distance from the shore, beyond the range of 

"10. Nevertheless, the great and increasing range of 
modern artillery will afford, in ordinary cases, fair secur- 
ity against hostile enterprises, up to the three-mile 

1 Minutes of evidence, 3335-3888. 

12107 2 


limit of territorial waters, and thus protect the cables in 
shallow water where they are most vulnerable. 

" 11. In the second place, strategic arrangements must 
be made on the assumption that a considerable propor- 
tion of cables will be interrupted during war time; and 
a variety of alternative routes must be provided to all 
important British possessions and naval stations. 

"13.. Cables between Great Britain and British posses- 
sions may (a) touch only on British soil; (b) touch on 
the territory of foreign states. 

"14. The latter, again, will, in time of war, further 
subdivide themselves into belligerents and neutrals. It 
will be the interest of the belligerents to interrupt or con- 
trol, by censorship, the telegraphic communications of 
their adversaries even to the degree of occasioning detri- 
ment to neutrals, and of incurring liability to make com- 
pensation to them for arbitrary interference with their 

" 15. On the other hand, it will be the interest of neu- 
trals to maintain their telegraphic communications, both 
with one another and with the belligerents, even to the 
possible detriment of the latter. 

"16. If we could accept the assumption that cables 
would not be cut in time of war, it is clear that for 
strategic purposes the all-British route would be for the 
best. * * * 

"17. But, as we have already stated, we think that 
our strategic arrangements must be made on the suppo- 
sition that a considerable proportion of cables will be 
cut. * * * 

"We thus arrive at two principles leading to diametri- 
cally opposite conclusions. The more probable it is that 
cables will not be cut, the greater the value of an all- 
British cable. The more probable it is that they can be 
cut, the greater the value of a cable touching on foreign 

On page 42 of this report, in the summary of recom- 
mendations", is the statement that, "In view of the 
probability of cable cutting a variety of alternative 
routes should be provided wherever it is essential to 
secure telegraphic communication in time of war." 


A recent English writer has correctly understood the 
attitude of the United States, as practice of the United 
States has shown. He says: "According to the Naval 
War Code of the United States, a cable entering a neu- 
tral's territory may not be touched. It is safe except 
when it is outside the three miles line or in the belliger- 
ent's territorial waters. 1 ' 

The cutting of the cable. — It has been shown that the 
United States naval officer, as an act of courtesy, made 
a protest against the hostile use of the cable connecting 
the belligerent and the neutral territory ; that the neutral 
declined to assume any responsibility; that the service 
rendered by this cable was of the nature of unneutral 
service ; that the owners of the cable are not entitled to 
any damages on account of the interruption of the serv- 
ice, or because of injury to the means of such unneutral 
service, and that the Naval War Code of the United 
States does not support this claim. 

It may be said that the nature of submarine telegraphic 
cable service is such as to be of the greatest importance 
in the time of war and that the belligerent may take 
measures to protect himself from its improper use. 
These measures may be proportioned in severity to the 
dangers which such improper use may entail upon the 

In general, the penalty for the performance of unneu- 
tral service is the -confiscation of the agency of such 
service. This being the case, a cable guilty of unneutral 
service may become liable to the penalty. Undoubtedly 
the liability to such a penalty is necessary in order to 
secure effective supervision of a cable by the owners or 
by state authorities, or when this supervision can not 
be secured to bring about the voluntary closing of the 
line liable to such penalties, unless the owners prefer to 
run the risk of injury to or confiscation of the cable 
property in case it comes within the power of the injured 

Practice, general principles, and opinion alike support 
the position that a cable connecting one belligerent and 
a neutral territory and rendering unneutral service is lia- 
ble to interruption by the other belligerent at any point 


outside of neutral jurisdiction. War will often make 
such interruption a reasonable necessity. 

Tn the "situation" under consideration the United 
States naval officer would be fully justified in cutting 
the cable at any point outside neutral jurisdiction. 


A revolutionary outbreak occurs in a South American 

The officer in command of a United States ship of 
war lying in the harbor of the capital city of the South 
American state is asked by a messenger from the Pres- 
ident of that state whether he will receive the President 
and his cabinet on board the ship of war in case they 
are in serious danger of personal injury from attack by 
the insurgents. 

What should be the reply of the officer ? 


The commander of the ship of war should reply that 
his Government discountenances the practice of grant- 
ing asylum on board of ships of war, and also that the 
regulations of the service allow the grant of asylum 
only under extreme and exceptional circumstances, of 
which he as commander must judge in the actual emer- 
gency should such emergency unfortunately arise in 
regard to the President and his cabinet while he re- 
mains in port. The commander could in no case prom- 
ise asylum for a future time of which the conditions 
could not be foretold. 



Article 308 of the United States Naval Regulations, 
1900, provides as follows: 

"The right of asylum for political refugees has no 
foundation in international law. In countries, how- 
ever, where frequent insurrections occur, and constant 
instability of government exists, usage sanctions the 
granting of asylum; but even in the waters of such 
countries officers should refuse all applications for asy- 
lum except when required by the interests of humanity 
in extreme or exceptional cases, such as the pursuit of a 



refugee by a mob. Officers must not directly or indi- 
rectly invite refugees to accept asylum." 

It is held by some that this article of the Naval Regu- 
lations does not apply to a "Situation" like the one pro- 
posed, that an officer of the United States should extend 
to the officers of the constituted government of the state 
in which they may be as much courtesy as possible, and 
that to promise asylum under the circumstances would 
be in accord with practice and would be good policy. 

The argument in favor of the grant of asylum is some- 
what as follows : 

The officer in command of the United States ship of 
war desires to extend so much courtesy to President and 
officials of the state in which he is as may be possible, 
believing that this is merely a temporary uprising against 
the constituted authority and that the officers of the gov- 
ernment are entitled to this courtesy. He has in mind 
the case of General Savasti, who was received during the 
revolution of 1895, when the regular government of 
Ecuador was overthrown and no government had been 

He believed that an officer of the constituted state was 
not in the category of those who should be refused when 
following article 308 of the Naval Regulations of 1900, 
as outlined in the second sentence, which states that 
"officers should refuse all applications for asylum except 
when required by the interests of humanity in extreme 
or exceptional cases, such as the pursuit of a refugee by a 
mob." He maintains that the circumstances under con- 
sideration constitute an exceptional case in which the 
interests of humanity demand that he shall grant the 
application even more than in such case of pursuit as 
mentioned in the Regulations. He further maintains 
that this is in no sense an invitation, direct or indirect, 
but merely a reply to a question which demands a reply 
and to which he would give an affirmative reply even 
should he read to the foreign minister Regulation 308, 
which provides for just such an extreme and exceptional 

It has been said that : 

" As to whether the degree of humanity involved jus- 
tifies the granting of an asylum the commanding officer 


on the spot must be the judge and can be guided only by 
international precedents and Naval Regulations." 

The officer maintains that the Regulations do not for- 
bid an affirmative reply, and that the international 
precedents and authorities also sanction his action as it 
affects the officials of the constituted government. , 

Hall, speaking of harboring criminals and nonpoliti- 
cal offenders, says of political refugees : 

"The case is again different if a political refugee is 
granted simple hospitality. The right to protect him 
has been acquired by custom. He ought not to be sought 
out or invited, but if he appears at the side of the ship 
and asks admittance he need not be turned away, and 
so long as he is innoxious the territorial government has 
no right either to demand his surrender or to expel the 
ship on account of his reception/' 
And in a note — 

" Something more may be permitted, or may even be 
due, in the case of the chiefs, or of prominent members of 
a government overturned by revolution. They retain a 
certain odour of legitimacy. In 1848 the admiral com- 
manding the British Mediterranean Squadron detached 
a vessel to take the pope on board in case refuge were 
needed; and in 1862, on the outbreak of revolution in 
Greece, a British frigate escorted a Greek man of war 
with the King and Queen on board, out of Greek waters 
and received them so soon as some slight danger of 
mutiny appeared." 1 

He also cites the letter of Secretary Olney to Mr. 
Tillman, minister to Ecuador, September 25, 1895, in 
which Mr. Olney says : 

" I note your statement that the family of the late 
minister of war came to your residence on the seven- 
teenth of August seeking shelter, and that, at the date 
you write, they were still inmates of your house. You 
add that General Savasti himself joined them on the fol- 
lowing night, and still remains your guest, quite ill. 
The shelter thus given by you to one of the prominent 
members of the overturned government, and as it appears 

1 Int. Law, p. 203, 4th ed. 


similarly granted by other foreign representatives to the 
families of members of the late government, does not 
appear up to the time of writing to have been of the 
nature of asylum as the word is properly understood by 
international authorities, there having been apparently 
no national or municipal government in the capital. 
Shelter under such circumstances was a mere act of 
humanity, unaccompanied by an assumption of extra- 
territorial prerogatives by you, or interference with any 
rights of legitimate government or. sovereignty. This is 
quite distinct from the so-called right of asylum, which 
can logically only be exercised in disparagement of the 
rights of the sovereign power by withdrawing an accused 
subject from its rightful authority." 

Then Mr. Olney quotes the instructions of Mr. Fish 
and Mr. Frelinghuysen discountenancing the practice 
of granting asylum, and stating that the Department's 
printed personal instructions relate in terms to the ex- 
tension of asylum to unsuccessful insurgents and con- 
spirators as an act of humanity when the hospitality 
afforded does not go beyond sheltering the individual 
from lawlessness. It may not be tolerated should it be 
afforded with a view to remove a subject beyond the 
reach of the law to the disparagement of the sovereign 
authority of. the state. 

" It seems to be very generally supposed that the case 
of a member of an overturned titular government is 
different; and so it maybe until the empire of law is 
restored and the successful revolution establishes itself 
in turn as the rightful government, competent to admin- 
ister law and justice in orderly process. Until that 
happens the humane accordance of shelter from law- 
lessness may be justifiable; but when the authority of 
the state is reestablished upon an orderly footing, no 
disparagement of its powers under the mistaken fiction 
of extraterritoriality can be countenanced on the part of 
the representatives of this Government." ' 

The officer of the United States bases his claim to 
correct action in granting the request of the messenger 

'For. Rel.. 1895, p. 245. 


on the ground that this is an exceptional case as pro- 
vided for by the Naval Regulations ; that it is not an 
invitation direct or indirect; that, as stated in Snow's 
Lectures, p. 28, he is supported by international prece- 
dents; that the position assumed is supported by Hall 
in his statement that "something more may be per- 
mitted, or may even be due, in the case of the chiefs, or 
of prominent members of a government overturned by 
revolution. They retain a certain odour of legitimacy," 
and further that the letter of Mr. Secretary Olney to 
Mr. Tillman in 1895 fully justifies his course as not 
being asylum but merely shelter, not interfering with 
the rights of legitimate government or sovereignty. As 
Mr. Olney says : 

"This is quite distinct from the so-called right of 
asylum, which can logically only be exercised in dis- 
paragement of the right of the sovereign power by with- 
drawing an accused subject from its rightful authority." 

By these and other arguments he maintains that he 
should grant an affirmative reply to the messenger of 
the constituted authorities. The officer also cites the 
instructions issued by the Secretary of the Navy during 
the civil war in Chile in 1891 : 

"In reference to the granting of asylum, your ships 
will not, of course, be made a refuge for criminals. In 
the case of persons other than criminals, they will afford 
shelter wherever it may be needed, to Americans first 
of all, and to others, including political refugees, as far 
as the claims of humanity may require and the service 
upon which you are engaged will permit." 

" The obligation to receive political refugees and to 
afford them an asylum is in general, one of pure humanity. 
It should not be continued beyond the urgent necessities 
of the situation, and should in no case become the means 
whereby the plans of contending factions or their leaders 
are facilitated. You are not to invite or encourage such 
refugees to come on board your ship, but should they 
apply to you, your action will be governed by considera- 
tions of humanity and the exigencies of the service upon 
which you are engaged." 



In a parallel case in regard to asylum in legations 
consequent upon uprisings in Ecuador in 1890 ! the United 
States minister maintains that he was acting, in promis- 
ing asylum if need be to the chief officials of the govern- 
ment of Ecuador, on the ground that he "would have 
saved from death the legitimate heads of the govern- 
ment until such time as they could again assume the 
functions of their respective offices." 

Secretary Hay, replying, reviews the conclusions of 
Secretary Olney already cited, particularly the clause 
reading : 

"It seems to be generally supposed that the case of 
a member of an overturned titular government is differ- 
ent; and so it may be until the empire of law is restored 
and the successful revolution establishes itself in turn 
as the rightful government, competent to administer law 
and justice in orderly process. Until that happens the 
humane accordance of shelter from lawlessness may be 
justifiable; but when the authority of the state is re- 
established upon an orderly footing no disparagement 
of its powers in the mistaken fiction of extraterritorial- 
ity can be countenanced on the part of representatives 
of this Government." 

Commenting on this position, Secretary Hay says: 

"From the foregoing considerations it is evident that 
a general rule, in the abstract, can not be laid down for 
the inflexible guidance of the diplomatic representatives 
of the Government in according shelter to those request- 
ing it. But certain limitations to such grant are recog- 
nized. It should not, in any case, take the form of a 
direct or indirect intervention in internecine conflicts of 
a foreign country, with a view to the assistance of any 
of the contending factions, whether acting as insurgents 
or as representing the titular government. 

"I therefore regret that I am unable to approve the 
promise of shelter made by you to the members of 
the titular government before the emergency had actu- 
ally arisen for decision as to whether the circumstances 
then existing would justify or make it permissible, and 

'For. Rel. U. *., 1869, 256-8. 


especially am I unable to approve the apparent ground 
or motive of the promise that you would have saved 
from death the legitimate heads of the government 
' until such time as they would again assume the func- 
tions of their respective offices.' 

"The Government of the United States remains a pas- 
sive spectator of such conflicts unless its own interests 
or the interests of its citizens are involved, and I con- 
ceive that it might lead to great abuses in the grant of 
such shelter, which is afforded only from motives of 
humanity, if assurances were given in advance to lead- 
ers of either of the contending factions that they might 
carry the conflict to whatever extremes with the knowl- 
edge that, at last they should enjoy impunity in the pro- 
tection of this Government; yet such might be construed 
as the practical effect of the assurance given in this case. 
I am therefore constrained to withhold my approval of 
the assurances given at the time and under the circum- 
stances stated in your dispatches and as understood by 
the Department." 

Still less is there reason for the commander to promise 
to grant asylum on board a ship of war since he is liable 
to receive orders at any moment which may change his 
plans or move the ship to another part of the world. 

The naval officer can not foretell the circumstances 
under which the President and his cabinet may finally 
come to him. He can not foretell what his own circum- 
stances may be at a time indefinite in the future — indeed, 
he is not certain that his ship will be in the harbor or in 
condition to receive the President and cabinet in their 
emergency. As a promise to receive these persons 
would, in a measure, prejudge a controversy to which 
he should remain a ''passive spectator," he would not 
be justified in. making an affirmative reply. 

He should therefore reply that his Goverment dis- 
countenances the practice of granting asylum on board 
ships of war, and the regulations of the service allow it 
only under extreme and exceptional cases, of which lie 
would be obliged to judge in the actual emergency should 
such emergency unfortunately arise in regard to the 
President and cabinet or other persons while he remains 
in port. He could in no case promise asylum in advanc i 
of the urgent necessity. 


At a port in China which, is held under lease by a 
European state and at which there is no consul of the 
United States, a near-by American consul accredited to 
China attempts to exercise his ordinary extraterritorial 
jurisdiction. His authority is denied by a representative 
of the European state, and he appeals to the commander 
of an American war vessel in port to support him in the 
exercise of his authority. 

What position should the commander take? 


The commander should take the position that he could 
not support the consul accredited to China in the exer- 
cise of authority within territory thus held under lease 
by a European power. 

The commander can assume that he is himself author- 
ized to exercise those consular functions which are under 
such circumstances specifically delegated to naval officers 
by his government. 1 



The actual status of the territory acquired by lease 
from China to European powers has not been determined. 
By the treaties of the United States with China, United 
States consuls have certain rights over and above those 
ordinarily exercised in European countries. In the 
strictly Chinese portions of the Empire these rights still 
exist. The existence of these powers or of any right to 
exercise consular jurisdiction of any kind within the 
portions of China leased to various European states de- 
pends upon the effect of the lease of territory by one 
state to another. This must be decided by reference to 
fundamental principles and by the terms of the contract. 

■U. S. N. Regs., art, 517. 


Iii regard to the terms of the contract the Tsung-li 
Yamen in setting forth the terms and conditions arrived 
at with the German minister in the matter of the lease 
of Kiaochow, which was one of the incidental items in 
the reparation made by China for the murder of two 
missionaries in Shantung province, made the following 
statement to the Emperor, after detailing the other 
demands of China: 

" Considering that there has never been any disagree- 
ment existing between China and Germany and that 
the German Government came to the assistance of China 
in securing the evacuation of Liaotung Peninsula by 
the Japanese for which she has never been recom- 
pensed; and further, as England, France, and Russia 
have taken maritime ports in the East, and as Germany 
lias no port as a rendezvous for her vessels and for a 
coaling station, her position is not equal to the other 
great powers. Your memorialists have on several 
occasions received notes and telegrams from Hsu Ching 
Cheng, Chinese minister to Germany, stating that 
Kiaochow is the place that Germany has been longing 
for, hence in February of last year your memorialists 
asked the sanction of Your Majesty to the building of a 
dock there. The question of devising some arrange- 
ments was therefore taken in hand. He (the German 
minister) finally stated that Germany wished to lease 
Kiaochow and territory inland, extending 100 li, upon 
the same conditions as the settlements and concessions 
at the ports, the rent to be paid annually; that the ter- 
ritory should be self-governing, i. e., under Germany, 
but still belong to China. '' l 

The lease stated that, "This port was occupied by Ger- 
many on November 14, 1897, and the following agree- 
ment, though not omcially proclaimed, is given in the 
directory referred to as a correct translation from the 
Chinese : 

"His Majesty the Emperor of China, being desirous 
of preserving the existing good relations with His 
Majesty the Emperor of Germany, and of promoting an 
increase of German power and influence in the far east, 

'For. Rel. U. S., 1898, 189. ■ 


sanctions the acquirement, under lease, by Germany of 
the land extending for 100 li at high tide (at Kiaochow). 

"His Majesty the Emperor of China is willing that 
German troops should take possession of the above- 
mentioned territory at any time the Emperor of Ger- 
many chooses. China retains her sovereignty over this 
territory, and should she at any time wish to enact laws 
or carry out plans within the leased area she shall be 
at liberty to enter into negotiations with Germany with 
reference thereto : Provided, always, That such laws or 
plans shall not be prejudicial to German interests. Ger- 
many may engage in works for the public benefit, such 
as waterworks, within the territory covered by the lease 
without reference to China. Should China wish to 
march troops or establish garrisons therein, she can 
only do so after negotiating with and obtaining the 
express permission of Germany. 

"II. His Majesty the Emperor of Germany being desir- 
ous, like the rulers of certain other countries, of estab- 
lishing a naval and coaling station and constructing 
dockyards on the coast of China, the Emperor of China 
agrees to lease to him for the purpose all the land on the 
southern and northern sides of Kiaochow Bay for a term 
of ninety-nine years. Germany is to be at liberty to 
erect forts on this land for the defense of her possessions 

"III. During the continuance of the lease, China shall 
have no voice in the government or administration of 
the leased territory. It will be governed and adminis- 
tered during the whole term of ninety-nine years solely 
by Germany, so that the possibility of friction between 
the two powers may be reduced to the smallest magni- 
tude. The lease covers the following districts : * * * 

"Chinese ships of war and merchant ships, and ships 
of war and merchant ships of countries having treaties 
and in a state of amity with China, shall receive equal 
treatment with German ships of war and merchant ships 
in Kiaochow Bay during the continuance of the lease. 
Germany is at liberty to enact any regulation she 
desires for the government of the territory and harbor, 


provided such regulations apply impartially to the ships 
of all nations, Germany and China included. 

"'IV. Germany shall be at liberty to erect whatever 
lighthouses, beacons, and other aids to navigation she 
chooses within the territory leased, and along the islands 
and coasts approaching the entrance to the harbor. 
Vessels of China and vessels of other countries entering 
the harbor shall be liable to special duties for the repair 
and maintenance of all lighthouses, beacons, and other 
aids to navigation which Germany may erect- and estab- 
lish. Chinese vessels shall be exempt from other special 

"V. Should Germany desire to give up her interest 
in the leased territory before the expiration of ninety- 
nine years, China shall take over the whole area, and 
pay Germany for whatever German property may at 
the time of surrender be there situated. In case of 
such surrender taking place, Germany shall be at lib- 
erty to lease some other point along the coast. Ger- 
many shall not cede the territory leased to any other 
power than China. Chinese subjects shall be allowed 
to live in the territory leased, under the protection of 
the German authorities, and there carry on their avoca- 
tions and business as long they conduct themselves as 
peaceable and law-abiding citizens. * * * Fugitive 
Chinese criminals taking refuge in the leased territory 
shall be arrested and surrendered to the Chinese author- 
ities for trial and punishment upon application to the 
German authorities, but the Chinese authorities shall 
not be at liberty to send agents into the leased terri- 
tory to make arrests. The German authorities shall 
not interfere with the likin stations outside but adja- 
cent to the territory." 1 

'The Japanese claim that sovereignty is too important 
a matter to pass thus with a lease, and say that China 
can, if she wishes, surrender jurisdiction over her own 
people, but they do not agree that these lessee govern- 
ments shall or can exercise jurisdiction over other for- 
eigners in the leased territory. However, no case has 
yet arisen for them to test the matter." 2 

'For. Rel. U. S., 1900, 383. '-'Ibid., 385. 


The Japanese claim that sovereignty has not passed 
to the leasing power is supported by the terms of the 
other cession agreements, as in the Russian agreement, 
which states in Article I that: 

" The Emperor of China agrees to lease to Russia Port 
Arthur and Talienwan, together with the adjacent seas, 
but on the understanding that such lease shall not preju- 
dice China's sovereignty over this territory." 

The British position is quite similar to the Russian. 
The lease is for "so long a period as Port Arthur shall 
remain in the occupation of Russia." 

The general position assumed by the powers is not that 
sovereignty has passed, but that the jurisdiction to the 
extent named in the treaty of cession has passed to the 
leasing power. 

It is generally the case that the right of sovereignty 
carries with it all other rights and obligations. As Hall 
(p. 51) says: 

"In principle, then, the rights of sovereignty give 
jurisdiction in respect of all acts done by subjects or 
foreigners within the limits of the state, of all property 
situated there, to whomsoever it may belong, and of 
those acts done by members of the community outside 
the state territory of which the state may choose to take 

"In practice, however, jurisdiction is not exercised in 
all these directions to an equal extent/' 

Sovereignty is the "supreme political power bej^ond 
and above which there is no political power. It is not 
inconsistent with sovereignty that a state should volun- 
tarily take upon itself obligations to other states, even 
though the obligations be assumed under the stress of 
war or fear of evil," and — 

"The right of jurisdiction is the right to exercise state 
authority. The right of jurisdiction is in general coex- 
tensive with the dominion of the state." ' 

As Judge Story says, it may be "laid down as a gen- 
eral proposition that all persons and property within the 
territorial jurisdiction of a sovereign are amenable to the 

1 Wilson & Tucker, p. 40. 


jurisdiction of himself or his courts ; and that the excep- 
tions to this rule are such only as by common usage and 
public policy have been allowed in order to preserve the 
peace and harmony of nations, and to regulate their in- 
tercourse in a manner best suited to their dignity and 
rights." 1 

If, then, by understanding and treaty statement of 
both China and the leasing powers, it is jurisdiction and 
not sovereignty that has passed to the leasing powers, it 
remains only to consider what jurisdiction involves. 
As already denned, jurisdiction " is the right to exercise 
state authority." It is necessary for administrative 
officers of the United States to know who are the persons 
authorized to exercise state authority. In the case under 
consideration it is without doubt the agents of the leas- 
ing powers of the several ports. As Mr. Conger reports 
to Secretary Hay : 

"I have conferred with the English, German, Russian, 
French, Spanish, Netherlands, and Japanese ministers 
upon the subject, and all of them except the Japanese, 
agree that the control over all of these leased ports has, 
during the existence of the lease, passed as absolutely 
away from the Chinese Government as if the territory 
had been sold outright, and that they are as thoroughly 
under jurisdiction of the lessee governments as any 
portion of their home territory, and their consuls, ac- 
credited to China, would not attempt to exercise juris- 
diction in any of said ports." 

Secretary Hay's opinion as to the relation to the leased 
territory of near-by consuls accredited to China shows 
the position of the United States, which is fully sus- 
tained by general principles and treaty agreements. He 
gives the conclusion that : 

"The intention and effect of China's foreign leases, 
having apparently been the relinquishment by China 
during the term of the leases and the conferment upon 
the foreign power of all jurisdiction over the territory, 
such relinquishment and transfer of all jurisdiction 
would seem also to involve the loss by the United States 
of its right to exercise extraterritorial consular jurisdic- 
tion in the territories so leased, while, as you remark, as 

1 "Santissima Trinidad," 7 Wheat., 354. 

12107 3 


these territories have practically passed into the control 
of peoples whose jurisprudence and methods are akin to 
our own, there would seem to be no substantial reason 
for claiming the continuance of such jurisdiction during 
the foreign occupancy or tenure of the leased territory. 

' 'As a corollary to this view, which from your state- 
ment appears to be held by all the powers, with the excep- 
tion of Japan, the ordinary consular functions prescribed 
and defined in the intercourse of the Christian powers 
among themselves could obviously not be exercised 
within the leased territory by a consul of the United 
States stationed in neighboring Chinese territory with- 
out some express recognition of his official character, by 
exequatur or otherwise, on the part of the sovereign into 
whose control the territory has passed by lease for the 
time being." l 

In the case cited, the representative of the European 
state presumably would be acting in accordance with 
orders from his government and would be supported 
by it. 

"Its administrative officers (of a state) and its naval 
and military commanders are engaged in carrying out the 
policy and the particular orders of the government, and 
they are under the immediate and disciplinary control 
of the executive. Presumably, therefore, acts done by 
them are acts sanctioned by the state, and until such acts 
are disavowed and until, if they are of sufficient impor- 
tance, their authors are punished, the state may fairly be 
supposed to have identified itself with them." 2 

A commander of an American man-of-war can only 
exercise the functions of a consul in relation to mariners 
of the United States." 

"He has, when in a foreign port where there is no 
United States consul, or upon the high seas when senior 
officer, the authority of law to exercise the powers of a 
consul in regard to mariners of the United States." 4 

Conclusions. — Pending the agreement between the 
United States and the leasing powers there would be no 

'For. Rel. U. S., 1900, 386. 3 Snow, 2d ed., p. 63, pars. 6-7. 
2 Hall, p. 226. 4 U. S. N. Regs., art. 5 17. 


person authorized other than by such regulations to 
exercise consular jurisdiction. 

The denial of consular jurisdiction by the authority 
of the leasing state is justifiable and necessary as it could 
have no legality if allowed. 

The commander of the American war vessel should 
therefore take the position that he could not support the 
consul in the exercise of any authority under the cir- 

It is now probable that in nearly all cases the near-by 
consuls will also be authorized to perform, in the leased 
ports, the usual functions permitted under similar cir- 
cumstances in the European countries, but in every 
instance this will require special authorization. 

It must be understood that this solution applies only 
to places leased under definite agreements over which 
European states have assumed responsible jurisdiction 
and not to regions considered under spheres of influence 
and similar indefinite terms. 

Of this Secretary Hay says : 

"It remains to be determined in what manner the 
interests of American citizens in such leased territories 
are to be watched over and, in case of need, protected 
by the agencies common in the intercourse of civilized 
powers. Those interests, often situated in the interior, 
remain for the most part under the same Chinese sur- 
roundings as heretofore, the superior control of the 
lessee power being manifested through native agencies 
and by way of influence rather than by direct admin- 
istration. Under such circumstances, the United States 
can not be expected to forego the use of all the custom- 
ary agencies of intercourse in behalf of its citizens 
and their property and commerce. It is presumed the 
other governments represented in China feel in the 
same way their responsibility to watch over their own 
citizens or subjects found within any leased territory 
not under their own national flag." 

The action of the commander in case submitted would 
not merely be to decline to support consul but to himself 
assume consular functions to extent allowed and pre- 
scribed by regulations of his service. 


If, on August 20, 1898, a United States war ship had 
entered the harbor of Hongkong to take coal for San 
Francisco or Honolulu as might be permitted, and the 
commander had been informed that he could take only 
coal enough to carry the ship to Manila as that was the 
"the nearest port of her own country," should he pro- 
test, and why? 

What constitutes a "port of a home country," and 
why ? 


The commander should protest against the decision 
that Manila, a port simply under the military control 
of the United States for the time being, was for the ship 
"the nearest port of her own country." 

This protest should be upon the ground that military 
occupation does not transfer nationality. 

He should state that the term "port of her own coun- 
try" is one within the political sovereignty of the flag 
of the vessel and not any port temporarily occupied by 
the forces under the same flag. 


Basis of action at Hongkong. — As Hongkong is a 
crown colony the proclamation of neutrality issued by 
Great Britain becomes binding there. This proclama- 
tion, signed April 23, 1898, has appended a letter from 
the foreign office containing the general regulations for 
the observance of neutrality, to the effect that "the gov- 
ernor or other chief authority of each of Her Majesty's 
territories or possessions beyond the seas shall forthwith 
notify and publish the above rules." Of these rules the 
third provides that: 

"No ship of war of either belligerent shall hereafter 
be permitted, while in any such port, roadstead, or waters 
subject to the territorial jurisdiction of Her Majesty, to 
take in any supplies, except provisions and such other 



things as may be requisite for the subsistence of her 
crew, and except so much coal only as may be sufficient 
to carry such vessel to the nearest port of her own coun- 
try, or to some nearer destination, and no coal shall 
again be supplied to any such ship of war in the same 
or any other port, roadstead, or waters subject to the 
territorial jurisdiction of Her Majesty, without special 
permission, until after the expiration of three months 
from the time when such coal may have been last sup- 
plied to her within British waters aforesaid." 

The provision of the rule "or to some nearer destina- 
tion," does not apply in the case under consideration, as 
the vessel has no destination nearer than a port of her 
own country. 

The first question is, then, whether the authorities at 
Hongkong were justified in interpreting "nearest port 
of her own country " to mean Manila, on August 20, 1898. 

Hotu tuas Manila related to the United States on Au- 
gust 20, 1898 9— In the Legal Tender Cases, 1870, Mr. 
Justice Bradley announced the generally accepted posi- 

"The United States is not only a government, but it 
is a national government, and the only government in 
this country that has the character of nationality. It is 
invested with power over all foreign relations of the 
country, war, peace, and negotiations, and intercourse 
with other nations." 1 

It is therefore necessary to look to the Government of 
the United States to learn what relations exist between 
the United States and Manila. 

By another decision "The President and Congress are 
vested with all the responsibility and powers of the Gov- 
ernment for the determination of questions as to the 
maintenance and extension of our national dominion." 2 

The courts therefore maintain that the attitude taken 
by the political branches of the Government within the 
Constitution is final. In other cases, the courts have 
decided that the government of new territory belongs 

1 12 Wall. , 555, U. S. Supreme Court. 
' 2 50 Fed. Rep., 110. 


"primarily to Congress, and secondarily to such agencies 
as Congress may establish." 1 

On August 12, 1898, the competent agencies ordered a 
suspension of hostilities. It was not till four months 
later that the treaty of peace determined the final dispo- 
sition of the Philippine Islands. On August 13, 1898, 
Manila was surrendered to Governor Merritt, who im- 
mediately proclaimed martial law. 

In General Orders No. 3, on August 9, 1898, published 
in the "Official Gazette, Manila," on August 20, 1898, 
by. command of General Merritt, is the following state- 
ment of the position : 

" In view of the extraordinary conditions under which 
this army is operating, the commanding general desires 
to acquaint the officers and men comprising it with the 
expectations which he entertains of their conduct. 

"You are assembled upon foreign soil situated within 
the western confines of a vast ocean separating you 
from your native land, etc." 

This seemed to be foreign soil in the eyes of General 
Merritt on August 9, when the orders were issued, and 
presumable also at the time of printing the orders on 
August 20. 

By an order issued by General Merritt to the people 
of the Philippines August 14, 1898, Article V, it was 
announced that : 

' ' The port of Manila, and all the other ports of and 
places in the Philippines which may be in the actual 
possession of our land and naval forces, will be open, 
while our military occupation may continue, to com- 
merce of all neutral nations as well as our own, in arti- 
cles not contraband of war, and upon payment of the 
prescribed rates of duty which may be in force at the 
time of importation." 

A telegram* from the Navy Department, August 12, 
1898, says: 

"The protocol, signed by the President to-day, pro- 
vides that the United States will occupy and hold the 
city, bay, and harbor of Manila pending the conclusion 

•18 Wall., 319. 


of a treaty of peace, which shall determine the control, 

disposition, and government of the Philippines. This 

most important. 

"Allen, Acting." 

This was in accord with Article III of the protocol. 

The telegram of August 17, 1898, read as follows: 

"The United States in possession of city, bay, and 
harbor of Manila must preserve peace, protecting per- 
sons and property in territory occupied by the military 
and naval forces." 

On August 22, 1898, General Merritt issued General 
Orders No. 8, "For the maintenance of law and order in 
those portions of the Philippines occupied or controlled 
by the Army of the United States," and on August 26, 
1898, General Merritt by "direction of the President of 
the United States" assumed his duties as military gov- 
ernor of the Philippines. 

The protocol of August 12, 1898, agreed that : 

"Upon the conclusion and signing of this protocol, 
hostilities between the two countries shall be suspended, 
and notice to that effect shall be given as soon as possi- 
ble by each government to the commanders of its mili- 
tary and naval forces." 2 

The resume in the instructions issued by President 
McKinley and addressed to the Secretary of War, De- 
cember 21, 1898, gives the following statement: 

"Sir: The destruction of the Spanish fleet in the har- 
bor of Manila by the United States naval squadron com- 
manded by Rear Admiral Dewey, followed by the reduc- 
tion of the city and the surrender of the Spanish forces, 
practically effected the conquest of the Philippine Is- 
lands and the suspension of Spanish sovereignty therein. 
With the signature of the treaty of peace between the 
United States and Spain by their respective plenipoten- 
tiaries at Paris, on the 10th instant, and as a result of 
the victories of American arms, the future control, dis- 
position, and government of the Philippine Islands are 
ceded to the United States. In fulfillment of the rights 

1 Article VI. 


of sovereignty thus acquired, and the responsible obli- 
gations of government thus assumed, the actual occu- 
pation and administration of the entire group of the 
Philippine Islands becomes immediately necessary, and 
the military government heretofore maintained by the 
United States in the city, harbor, and bay of Manila is 
to be extended to the whole of the ceded territory." 

In the case 1444, Division of Insular Affairs, War De- 
partment, it is stated that : 

"At the time of the peace conference at Paris in 1808 
all the rights of Spain in the islands above mentioned 
(Porto Rico, the Philippines, and Gaum) had not been 
obliterated. The sovereignty of Spain therein had been 
displaced and suspended but not destroyed. Theoreti- 
cally Spain retained the right of sovereignty, but the 
United States was in possession and exercising actual sov- 
ereignty. The rights of the United States were those of a 
belligerent and arose from possession and were dependent 
upon the ability to maintain possession. Under the doc- 
trine of postliminy the sovereignty and rights of Spain 
would become superior to those of the United States, if 
by any means Spain again came into possession of one or 
all of said islands. The American commission therefore 
required, as a condition precedent to a peace, that Spain 
surrender this right of repossession." : 

By Article III of the treaty with Spain " Spain cedes 
to the United States the archipelago known as the Phil- 
ippine Islands and comprehending the islands lying 
within the following lines, etc." 

In Flemming et al. v. Page, speaking of the Mexican 
war, the Supreme Court says : 

" The boundaries of the United States as they existed 
when war was declared against Mexico were not extended 
by conquest ; nor could they be regulated by the varying 
incidents of war and be enlarged or diminished as the 
armies on either side advanced or retreated. They re- 
mained unchanged. And every place which was without 
the limits of the United States, as previously established 

1 The Law of Civil Government under Military Occupation, p. 45, 
Magoon's Reports, U. S. Govt., 1902. 


by the political authorities of the Government, was still 
foreign." l 

"Military government is the authority by which a 
commander governs a conquered district when local insti- 
tutions have been overthrown and the local rulers dis- 
placed, and before Congress has had an opportunity to 
act under its power to dispose of captures or govern ter- 
ritories. This authority in fact belongs to the President 
and it assumes the war to be still raging and the final 
status of the conquered province to be determined, so 
that the apparent exercise of civil functions is really a 
measure of hostility." 2 

The claim of the United States to the territory now 
known as New Mexico was acquired by conquest, the 
treaty of peace with Mexico merely acknowledging the 
fact that said territory already had been conquered. On 
the other hand the Philippine Islands are specifically 
ceded to the United States, and furthermore, there is a 
money payment In answer, then, to the first question, 
"How was Manila related to the United States on August 
20, 1898 ?", the courts, the administrative departments of 
the Navy and Army, the political branches of the United 
States, and the authorities of Spain agree that the " city, 
bay, and harbor of Manila " was simply occupied by the 
military and naval forces of the United States, and that 
the future of the Philippine Islands was to be determined 
by the treaty of peace. 

Further, there was every reason to believe that this 
fact of military occupation without any further rights 
or powers on the part of the representatives of the United 
States was fully known to the British authorities at Hong- 

What is the effect of such military occupation as the 
United States forces had established in Manila on and 
before August 20, 1898. — From the preceding discussion 
it is evident — 

(1) That the British authorities at Hongkong were 
bound not to allow a United States vessel of war to take 

1 9 Howard, 616. 2 Pomeroy Const. Law, 595. 


on coal beyond the limit required to reach " the nearest 
port of her own country." 

(2) That the "city, bay, and harbor of Manila" were 
"occupied by the military and naval forces of the United 
States," and that this was military occupation only, 
commonly called belligerent or hostile occupation. 

The question as to the effect of military occupation 
then follows. 

In an early case 1 it is stated that: 

" The holding of a conquered territory is regarded as 
a mere military occupation until its fate shall be deter- 
mined at the treaty of peace. If it be ceded by the 
treaty the acquisition is confirmed and the ceded ter- 
ritory becomes a part of the nation to which it is annexed, 
either on the terms stipulated in the treaty of cession, or 
on such as its new master shall impose. * * * The 
same act which transfers their country transfers the 
allegiance of those who remain in it ; and the law, which 
may be denominated political, is necessarily changed, 
although that which regulates the intercourse and general 
conduct of individuals remains in force until altered by 
the newly created power of the state." 

Again the court says in regard to the military occupa- 
tion of 1814: 

"But, on the other hand, a territory conquered by an 
enemy is not to be considered as incorporated into the 
dominions of that enemy, without a renunciation in a 
treaty of peace, or a long and permanent possession. 
Until such incorporation, it is entitled to the full benefit 
of the law of postliminy." 2 

"By reason of the victory of the fleet under Dewey's 
command in Manila Bay and the subsequent capture of 
the city of Manila by the military forces of the United 
States, under the law and usages of war the military 
occupation of territory creates an obligation to provide 
for the administration of the affairs of civil government 
in the occupied territory. This obligation is binding 
upon the military authorities of the United States, and 
the resulting duty may be discharged by them. (Cross 

'American Ins. Co. v. Canter, 1 Peters, 511. 
2 United States v. Hayward, 2 Gall. , 485. 


et al. v. Harrison, 16 How., 164, 193; Leitensdorfer v. 
Webb, How., 176, 177.) 

' ' Governments so created are intended to perform two 
services — promote the military operations of the occu- 
pying army and preserve the safety of society. (Ex 
parte Milligan, 4 Wall., 127.) 

' ' For the accomplishment of these purposes such a gov- 
ernment, to use the language of the United States Su- 
preme Court, "may do anything necessary to strengthen 
itself and weaken the enemy. There is no limit to the 
powers that may be exercised in such cases save those 
which are found in the laws and usages of war. * * * 
In such cases the laws of war take the place of the Con- 
stitution and laws of the United States as applied in the 
time of peace." * (New Orleans v. Steamship Company, 
20 Wall., 304.) 

Chief Justice Marshall (in The American and Ocean 
Insurance Company) said: 

"The usage of the world is, if a nation be not entirely 
subdued, to consider the holding of conquered territory 
as mere military occupation until its fate shall be de- 
termined by a treaty of peace." 

The Laws of War on Land adopted at Oxford, Septem- 
ber 9, 1880, and generally accepted by civilized states, 
and in accord with the rules of the Hague conference, 
define occupied territory : 

"A territory is considered to be occupied when, as 
the result of its invasion by an enemy's force, the state 
to which it belongs has ceased, in fact, to exercise its 
ordinary authority within it, and the invading state is 
alone in a position to maintain order. The extent and 
duration of the occupation are determined by the limits 
of space and time within which this state of things 
exists." Rule 41. 

" The sovereignty of the occupied territory does not 
pass to the occupying state, but only the right to exer- 
cise the authority necessary for safety and operations of 

1 Magoon's Law of Civil Government under Military Occupation, 
p. 216. 

44 PORT OF A HOME country. 

war. * * * Belligerent occupation begins when an 
invaded territory is effectively held by a military force." ' 

"The occupation applies only to the territory where 
such authority is established and in a position to assert 
itself." ' 2 

Therefore the sphere of occupation might change 
from day to day. 

Hall says of the effect of military occupation : 

" When an army enters a hostile country, its advance 
by ousting the forces of the owner puts the invader into 
possession of territory which he is justified in seizing 
under his general right to appropriate the property of 
his enemy. But he often has no intention of so appro- 
priating it, and even when the intention exists, there is 
generally a period during which, owing to insecurity of 
possession, the act of appropriation can not be looked 
upon as complete. In such case the invader is obviously 
a person who temporarily deprives an acknowledged 
owner of the enjoyment of his property; and logically 
he ought to be regarded either as putting the country 
which he has seized under a kind of sequestration, or, 
in stricter accordance with the facts as being an enemy 
who in the exercise of violence has acquired a local 
position which gives rise to special necessities of war, 
and which therefore may be the foundation of special 
belligerent right. * * * Recent writers adopt the 
view that the acts which are permitted to a belligerent 
in occupied territory are merely incidents of hostilities; 
that the authority which he exercises is a form of the 
stress which he puts upon his enemy; that the rights 
of the sovereign remain intact (p. 487). * * * If 
occupation is merely a phase in military operations, and 
implies no change in the legal position of the invader 
with respect to the occupied territory and its inhab- 
itants, the rights which he possesses over them are those 
which in the special circumstances represent his general 
right to do whatever acts are necessary for the prosecu- 
tion of his war; in other words, he has the right of 
exercising such control, and such control only, within 

1 Wilson & Tucker, Int. Law, p. 251. 

2 Hague Convention, War on Land. Article XLII. 


the occupied territory as is required for his safety and 
the success of his operations." 1 

Military occupation differs from conquest. 

"Conquest in the technical sense of the status of a 
territory which has come permanently under the juris- 
diction of the enemy is distinct from military occupation, 
which is a simple fact supported by force. 

" Military occupation may pass into conquest (1) by 
actual occupation for along period with intention on the 
part of the occupier to continue the possession for an in- 
definite period, provided there has not been a continued 
and material effort upon the part of the former holder to 
regain possession. If, after a reasonable time, this effort 
to regain possession seems futile, the conquest may be 
regarded as complete. Each state must judge for itself as 
to the reasonableness of the time and futility of the effort. 
(2) Conquest may be said to be complete when by decree, 
to which the inhabitants acquiesce, a subjugated territory 
is incorporated under a new state. (3) A treaty of peace 
or act of cession may confirm the title by conquest."" 

From what has been said there is an agreement suffi- 
cient to be called general that the city, bay, and harbor 
of Manila was in a state of hostile occupancy by the 
United States on August 20, 1898; that such occupancy 
does not work a change of nationality in the territory so 
occupied, and that the change in nationality occurs only 
when the conclusion of the treaty of peace or long un- 
interrupted holding after conquest shows no intent on 
the part of the original holders to maintain their title to 
the occupied territory. 

It is certain that the uninterrupted holding by the 
United States had not been sufficiently long, sufficiently 
complete and uncontested (as the city had only been taken 
a week before) to warrant any claim of title in the United 
States. It was certain that no agreement conferring this 
territory upon the United States had been made. It is 
certain that the United States had made no claim to this 
territory other than that of hostile occupancy. 

1 Int. Law, 4th ed., p. 481. See p. 488, sec. 155. 
* Wilson & Tucker, p. 99. 


Thus as Manila had not been incorporated into the 
United States on August 20, 1898, it could not be con- 
sidered "a port of her own country." Again it might 
be an offense to Spain to give expression to such an opin- 
ion pending negotiations the issue of which could not be 
foretold. There was no way by which it could be pre- 
sumed by the British authorities that this might ulti- 
mately be incorporated by the United States rather than 
be restored to Spain, be made an independent state or 
be disposed of otherwise. 

The United States has also led the way in giving an 
interpretation to the rule as is shown in the proclamation 
of President Grant, October 8, 1870, when it allowed 
"only sufficient coal to take the vessel to the nearest 
European port of her own country," regardless of the fact 
that there were island ports of one of the belligerents 
nearer. This by implication eliminates ports which are 
in doubt or are liable to iiwolve hardship if made the 
points to which vessels must of necessity set out. Of 
course a neutral may make further regulations for safe- 
guarding herself against abuses of coaling privileges if 
the vessel, unless the ordinarily accepted contingencies 
of accident, weather, or other stress prevent, does not sail 
to the port for which it sets out. 

Grounds of the commander 's protest. — The com- 
mander of the war ship should protest against the 
decision of the authorities at Hongkong that Manila was 
on August 20, 1898, "the nearest port of her own coun- 
try" in the intent of the neutrality proclamation. 

He should protest on the ground that : 

(1) Manila is simply in a state of hostile occupancy. 

(2) That hostile occupancy does not transfer national- 
ity in people or place. 

(3) That it is only by the terms of peace or long occu- 
pancy that Manila could become "a port of the home 

(4) That the condition of Manila was itself uncertain 
while so small an area was occupied. 

(5) That to affirm that Manila was a United States 
port prejudged the Spanish rights which might revert 
by postliminy. 


(6) That the request for coal for Honolulu at least 
was a reasonable one, and that a statement that the ves- 
sel would not journey to Manila would be made if there 
were any question still remaining. 

What constitutes a "port of a home country?" — The 
question as to what constitutes, as it is called in the 
British and other neutralization proclamations, " port of 
her own country " is in part already answered. It is a 
port in which the political authority of the state would 
have full vigor. The element "own country," in this 
international sense, implies within the sovereign author- 
ity, which manifestly Manila can not be, for it is merely 
military authority by power of arms, without political 
competence, that the United States is exercising on 
August 20, 1898. Further, a "port" i:j plies, when ap- 
plied to a home country, a place in which full rights and 
privileges are secured without effort upon the part of 
the domestic vessel but as a right requiring no defense. 

Manila is not such a harbor. 

Farther, it may be said that " port of her own coun- 
try " can not be construed to mean merely a point within 
its jurisdiction, unless such point be a reasonably suit- 
able port considering the nature of the vessel. A har- 
bor which would be of such a character as to forbid 
entrance or make it exceedingly dangerous in time of 
peace would not be a reasonable harbor, nor would one 
for the time being in the possession of the enemy. While 
the neutral is bound to exercise "due diligence," the 
neutral is not bound to carry on war or sacrifice itself 
or its merchants unduly for either of the belligerents. 
As Wharton has said: 1 

"To require a neutral to shut up its ports so as to 
exclude from coaling all belligerents would expose a 
nation with ports as numerous as those of the United 
States to an expense as great as would be imposed by 
actual belligerency. It is on the belligerent who goes 
to war, not on the neutral, who desires to keep out of it, 
that should be thrown expenses so enormous and consti- 
tutional strains so severe as those thus required." 

Criminal Law, 9th eel, sec. 1908. 


A " port of the home country " would, then, be a rea- 
sonably suitable harbor at a point which is within the 
political sovereignty of the state to which the vessel 

Conclusion. — In conclusion, then, the commander has 
a right to protest against the action of the authorities 
at Hongkong, and to claim that Manila was not, on 
August 20, 1898, a port of the United States, but was 
nothing more than a temporary military base. 

The term "port of a home country" must be given 
an interpretation which will permit a reasonably suit- 
able harbor within the full political sovereignty of the 
flag of the vessel. 


While states X and Y are at war a port of X is block- 
aded by Y. There are merchant vessels and a war vessel 
of the United States in the port. The authorities of 
state X set adrift rafts loaded with explosives in the hope 
that they will come in contact with and destroy vessels 
of the blockading squadron. The captains of the United 
States merchant vessels request the commander of the 
war vessel of the United States to protest against this 
action as contrary to international law and as unneces- 
sarily endangering neutral shipping. 

How should the commander act and on what grounds? 


The commander of the ship of war of the United States 
should inform the captains of the merchant vessels that 
he cannot protest against necessary acts of war which 
clearly are aimed at the enemy. 

He might, however, request of the authorities of the 
port an opportunity for the United States merchant ves- 
sels to remove to a point of greater safety provided the 
necessities of the war would allow. 

A belligerent is bound by the necessities of war, and 
should, so far as such necessities permit, guard from 
danger neutrals by courtesy within the port, but can 
not be expected to use greater care in this respect than 
in regard to shipping flying its own national flag. 


Methods used in war between Chile and Peru. — Dur- 
ing the war between Chile and Peru there were varying 
rumors that questionable methods were employed by the 
belligerents in carrying on the war. Of one of these 
Mr. Evarts, writing under date of January 25, 1881, says : 
'This report is that the Peruvians have made use, 
during the present war with Chile, of 'boats containing 
explosive materials' which have 'in some instances been 


12107 i 


se1 adrift on the chance of their being fallen in with by 
some of the Chilean blockading squadron.' How far the 
case of the launch to which you refer in your No. 183 
(the Loa), which was loaded with concealed dynamite, 
comes within the description of cases mentioned the De- 
partment has not the requisite data to determine. It is 
sufficiently obvious that this practice must be fraught 
with danger to neutral vessels entitled to protection under 
the law of nations, and that in case American vessels are 
injured thereby this Government can do no less than 
hold the government of Peru responsible for any damage 
which may be thus occasioned. 

"There is no disposition on the part of this Govern- 
ment to act in anywise nor in any spirit which may be 
construed as unnecessarily critical of the methods where- 
by Peru seeks to protect her life or territory against any 
enemy whatsoever, but it will appear, I think, to the 
high sense of propriety which has in times past distin- 
guished the councils of the Peruvian Government, and 
which without doubt still abides therein, that in case it 
is ascertained that means and ways so dangerous to neu- 
trals as those adverted to have been for any reason suf- 
fered to be adopted by her forces, or any part of them, 
they should be at once checked, not only for the benefit 
of Peru, but in the interest of a wise and chivalrous war- 
fare, which should constantly afford to neutral powers 
the highest possible consideration." ' 

Mr. Christiancy, replying to this communication on 
March 8, 1881, said: 

"I will say that there never has been any real danger 
to neutral vessels from the cause mentioned, so far as I 
know or have been informed. But three instances have 
occurred during the war (so far as I have ever heard) 
which could by any possible latitude of construction 
come within the grounds of complaint mentioned. * * 
No complaint was ever made or suggested to me on behalf 
of any merchant vessel of the United States, nor any of 
our naval vessels on this score. " 

This case did not, therefore, become a precedent. 

^or. Rel., 1881, p. 857. 


Methods used during the Franco- Chinese difficulties. — 
On July 2, 1886, Mr. Bayard, writing to Mr. Denby, at 
the time of the Franco-Chinese difficulties, said in regard 
to obstructions to neutral shipping : 

"It is unquestionable that a belligerent may, during 
war, place obstructions in the channel of a belligerent 
port, for the purpose of excluding vessels of the other 
belligerent which seek the port either as hostile cruisers 
or as blockade runners. This was done by the Dutch 
when attacked by Spain in the time of Philip II; by 
England when attacked by the Dutch in the time of 
Charles II ; by the United States when attacked by Great 
Britain in the Revolutionary war and in the war of 1812 ; 
by the United States during the late civil war ; by Rus- 
sia at the siege of SebastopoJ, and by Germany during 
the Franco-German war of 1870." 1 

The commander in chief of the military district of 
Odessa, in April, 1877, declared that passage of harbors 
in that region would be allowed only under strict regu- 
lations, as they were barred by mines. 

The introduction of obstacles, whether by sinking of 
stones, vessels, or other materials in harbors has been 
of not infrequent occurrence. This has often met with 
protest from neutrals, but even where the obstacles were 
most serious the protests have not been heeded to the 
extent of discontinuing undertakings which were dis- 
tinctly aimed at the enemy, and which would take effect 
within the belligerent jurisdiction. In the case of the 
obstructions in the Canton River in 1884, though the 
United States had a treaty provision allowing freedom 
of entrance even in war, the Secretary of State only went 
so far as to say : 

"Even, however, under the favorable modification, 
the leaving of a 150-foot channel, the obstruction to the 
channel at Canton and Whampoa can only be tolerated 
as a temporary measure, to be removed as soon as the 
special occasion therefor shall have passed, and under 
no circumstances to be admitted as a precedent for set- 
ting obstacles to open navigation at the treaty ports in 

For. Rel., 1886, p. 95. 


lime of peace under pretext of being intended for ulti- 
mate strategic defense in contingency of future war." ' 

Mr. Frelinghuysen, in a telegram to Mr. Young, Jan- 
uary 22, 1884, said: 

"No protest can be made against China for taking 
such steps for its defense as it may deem necessary.*' 

Rivier 2 allows the obstruction of harbors against 
blockading forces under the necessities of war, actual or 

General principles. — As a general principle neutrals 
have a right to carry on commerce in the time of 'war. 

According to Bonfils 3 the problem then becomes one 
of "taking into consideration the respective rights of 
belligerents to place their opponent beyond the power of 
resistance, but respecting the liberty and independence 
of the neutral in doing this ; rights of the neutrals to 
maintain with each of the belligerents free commercial 
relations, without injury to the opponent of either." 

It is admitted, in theory and in practice, that a bel- 
ligerent may use submarine boats, mines, torpedoes, and 
may place obstructions in the channel " for the purpose 
of excluding the vessels of the other belligerent " from 
a harbor. 

In recent wars some time has been allowed for ships 
to load and depart from blockaded ports when they 
chance to find themselves in such ports at the proclama- 
tion of hostilities. This time varies. In the recent 
Spanish-American war Spain, in royal decree of April 
23, 1898, Article II, said: 

" A term of five days from the date of the publication 
of the present royal decree in the Madrid Gazette is 
allowed to all United States ships anchored in Spanish 
ports, during which they are at liberty to depart." 

The proclamation of the United States, of April 22, 
1898, said: 

"Neutral vessels lying in any of said ports (those pro- 
claimed blockaded) at the time of the establishment of 
such blockade will be allowed thirty days to issue there- 

1 For. Rel., 1884, Frelinghuysen to Young, April 18, 1884. 

2 Droit du Gens, II, p. 292. 
•■Droit Int. Pub., sec. 1494 if. 


Neither of these declarations put the belligerents under 
any obligations toward such vessels if they remain a 
longer time in the blockaded port. 

It is properly held that vessels that remain in port after 
the time specified for their departure or enter the port 
after knowledge of hostilities are not entitled to special 
protection. Such vessels would not be in the port ordi- 
narily without the hope of an exceptional reward for the 
unusual risks, and this being the case the belligerent is 
not bound to guard them against such risks as they may 
incur by coming within the field where the belligerent 
is carrying on legitimate hostilities made necessary by 
the exigencies of war. The presence of neutral shipping 
within a port which is duly blockaded in the time of war 
will not prevent a belligerent from pursuing the general 
objects of war. 

Article I of the Naval War Code of the United States 
states that : " The general object of war is to procure the 
complete submission of the enemy at the earliest possible 
period, with the least expenditure of life and property," 
and of the objects of maritime war' " to aid and assist 
military operations on land, and to protect and defend 
the national territory, property, and sea-borne com- 

Article II provides that : "The area of maritime war- 
fare comprises the high seas or other waters that are 
under no jurisdiction, and the territorial waters of the 

Article III provides that : " Military necessity permits 
measures that are indispensable for securing the ends of 
the war and that are in accordance with modern laws 
and usages of war." 

It does not permit wanton devastation, the use of 
poison, or the doing of any hostile act that would make 
the return to peace unnecessarily difficult. 

Noncombatants are to be spared in person and prop- 
erty during hostilities, as much as the necessities of war 
and the conduct of such noncombatants will permit. 

In the case under consideration there is no doubt that 
the elements necessary for a state of blockade are pres- 
ent. There is a state of war, the place is susceptible of 


blockade and is blockaded and the neutrals have ample 
evidence of the fact. 

The proclamations of blockade do not give to the 
neutrals any guarantees, but only the permit to remain 
within the blockaded port or ports a certain time under 
certain conditions. 

The object of war being the submission of the enemy, 
the area of legitimate warfare covering the port in ques- 
tion, military necessity permitting such measures as 
accord with the laws of war, and it being necessary to 
spare the person and property of noncombatants as far 
as the conditions will permit, it is evident that neutrals 
within belligerent jurisdiction, whether before the ex- 
piration of the time allowed for their departure or after 
that time, may be liable to certain consequences. 

Halleck * says : 

" States, not parties to a war, have not only the right 
to remain neutral during its continuance, but to do so 
conduces greatly to their advantage, as they thereby pre- 
serve to their citizens the blessings of peace and com- 
merce. Moreover, the belligerents are interested in 
maintaining the just rights of neutrals, as the trade and 
intercourse kept up by them greatly contribute to miti- 
gate the evils of war. It has, therefore, become an 
established principle of international law that neutrals 
shall be permitted to carry on their accustomed trade 
with such restrictions only as are necessary for the 
security of the established rights of the belligerents." 

Hall 2 says: 

"A neutral individual in belligerent territory must 
be prepared for the risks of war and can not demand 
compensation for the loss or damage of property result- 
ing from military operations carried on in a legitimate 

In some instances the "belligerents" exercise the so- 
called right of using or destroying neutral property on 
the plea of necessity, giving compensation. "This prac- 
tice is called ' angary ' or ' prestation ' and is by 

'Int. Law, Vol. II, p. 143. 2 Int. Law, 4th ed., p. 743. 


most jurists either condemned or regarded with dis- 
favor. An illustration is the sinking, during the Franco- 
Prussian war of 1870, by the Germans, of several British 
merchant ships in the Seine to prevent gunboats from 
going up the river. During the same war the Germans 
seized in Alsace, for military purposes, certain railway 
carriages of the Central Swiss Railway and certain Aus- 
trian rolling stock, all of which remained in the posses- 
sion of the Germans for some time." For this the Naval 
War Code of the United States provides, Article VI : 

" If military necessity should require it, neutral vessels 
found within the limits of belligerent authority may be 
seized and destroyed or otherwise utilized for military 
purposes, but in such cases the owners of neutral vessels 
must be fully recompensed." 

It would then appear that the absolute seizure of 
neutral property for the purpose of using it for carrying 
on the war would not be allowed except in extreme 
cases for full recompense. 

The case under consideration is one between the con- 
dition of absolute immunity from the consequence of 
war and the condition warranting appropriation for 
which compensation can be demanded. 

Of this position Hall ' says : 

" As a state possesses jurisdiction, within the limits 
which have been indicated, over the persons and prop- 
erty of foreigners found upon its land and waters, the 
persons and property of neutral individuals in a bellig- 
erent state are in principle subjected to such exceptional 
measures of jurisdiction and to such exceptional taxa- 
tion and seizure for the use of the state as the existence 
of hostilities may render necessary, provided that no 
further burden is placed upon foreigners than is im- 
posed upon subjects. 

" So, also, as neutral individuals within an enemy 
state are subject to the jurisdiction of that enemy, and 
are so far intimately associated with him that they can 
not be separated from him for many purposes, they and 
their property are as a general principle exposed to the 

^nt. Law, 4th ed., p. 764. 


same extent as noncornbatant enemy subjects to the 
consequences of hostilities." 

Of the vessels of the United States in question within 
the port it maybe said: "The general principle that 
neutral property in belligerent territory shares the lia- 
bilities of property belonging to subjects of the state is 
clear and indisputable; and no objection can be made to 
its effects upon property which is associated either per- 
manently or for a considerable time with the belligerent 

The neutral merchant ships are liable to the conse- 
quences of legitimate hostilities. 

Conclusions. — In reply to the question, "How should 
the commander act, and on what grounds?" 

It would be safe to say that the commander could demands upon the belligerent, nor could he 
make any protest, though he might request delay suffi- 
cient to assist in placing the neutral shipping under the 
flag of the United States in a position as safe as possible 
considering the military necessity. The commander of 
the United States war vessel should take the position of 
trying to aid the vessels of his countrymen by helping 
them to avoid danger, rather than that of impeding the 
action of the belligerent within whose port he finds 

The belligerent within whose port the vessels of the 
United States are is bound to regard the safety of neutral 
vessels in carrying on hostile operations as far as the 
necessities of war permit. 

It is evident that while the obligations of neutrals to 
belligerents has received much attention, the considera- 
tion of belligerent obligations to neutrals has received 
far less definition than its importance deserves. 


Insurgents in state A, with which, the United States 
has full international relations, proclaim and maintain 
a blockade of a port occupied by state A. The cap- 
tain of an American merchant ship complains to the 
commander of an approaching United States war ship 
that he can not enter port without incurring risk of the 
penalties for violation of blockade and desires the assist- 
ance of the United States war ship in entering the port 
on the ground that no war exists in state A, and he is 
therefore entitled by treaty and on general principles to 
enter this port. 

What position should the commander assume? 

How far is the commander of the merchant ship cor- 
rect in his contentions? 


The commander of the United States war ship should 
assume the position that, in general, naval officers of the 
United States will permit no interference with ordinary 
commerce of the United States, unless they are duly 
instructed by their Government. (The above position 
should be considered with reference to the conclusions 
set forth on page 74.) 

The captain of the merchant vessel is correct in his 
claim in regard to general principles, and most treaties 
secure commercial freedom. 



Definition of blockade. — The simple enumerated 
clauses of the Declaration of Paris, 1856, of which the 
fourth is applicable to blockades, viz: "Blockades in 
order to be binding must be effective ; that is to say, main- 
tained by force sufficient really to prevent access to the 
coast of the enemy," are often quoted as though these 



were principles always applicable. There were prior 
clauses indicating under what circumstances these laws 
were applicable as, "Considering: That maritime law in 
time of war has long been the subject of deplorable dis- 
putes ; that the uncertainty of the law and of the duties 
in such a matter give rise to differences of opinion 
between neutrals and belligerents which may occasion 
serious difficulties, and even conflicts," etc. These show 
distinctly that blockade as viewed in this declaration w T as 
a war measure. 

In the Naval War College Manual of International 
Law, page 151, blockade is defined: "A blockade being 
an operation of war, any government, independent or 
de facto, whose rights as a belligerent are recognized, 
can institute it as an exercise of those rights." 

Hall 1 says : " Blockade consists in the interception by 
a belligerent of access to a territory or a place which is 
in the possession of his enemy." This implies the three 
conditions : 2 

"1. The belligerent must intend to institute it as a 
distinct and substantive measure of war, and his inten- 
tion must have in some way been brought to the knowl- 
edge of the neutrals affected. 

"2. It must have been initiated under sufficient au- 

"3. It must be maintained by a sufficient and properly 
disposed force." 

Dahlgren 3 defines blockade as follows: 

"The word blockade properly denotes obstructing the 
passage into or from a place on either element, but is 
more especially applied to naval forces preventing com- 
munication by water. With blockades by land, or ordi- 
nary sieges, neutrals have usually little to do." 

Walker says : 4 

"The blockade must have been established under the 
sanction of sufficient authority. A blockade to be 
legally binding must be a state measure. It may be a 

1 Hall, sec, 257, p. 718. 'Dahlgren, p. '26. 

•Ibid., p. 719. 4 Science of Int. Law, p. 519. 


direct state measure instituted under formal ministerial 
notice, or by an officer in pursuance of special instruc- 
tions from his government, or it may be but indirectly 
a state measure being established de facto by a belliger- 
ent commander in the exercise of the general powers 
ordinarily committed to him. But in this last case, as, 
for example, when the naval commander on a distant 
station institutes a blockade without awaiting the prior 
express authorization of his home authorities, the neu- 
tral trader can only be injuriously affected if the action 
of the officer be subsequently formally adopted by his 

Dana, in a note to Wheaton's International Law, 1 
takes a more extreme position than is now generally 
accepted in regard to piracy. In speaking of the case 
where the insurgents and parent state are maritime he 
says : 

"If the contest is a war, all foreign citizens and offi- 
cers, whether executive or judicial, are to follow one 
line of conduct. If it is not a war they are to follow a 
totally different line. If it is a war, the commissioned 
cruisers of both sides may stop, search, and capture the 
foreign merchant vessel, and that vessel must make no 
resistance and must submit to adjudication by a prize 
court. If it is not a war the cruisers of neither party 
can stop or search the foreign merchant vessel, and that 
vessel may resist all attempts in that direction, and the 
ships of war of the foreign state may attack and capture 
any cruiser persisting in the attempt. If it is war, for- 
eign nations must await the adjudication of prize tribu- 
nals. If it is not war no such tribunal can be opened. 
If it is a war, the parent state may institute a blockade 
jure gentium of the insurgents' ports which foreigners 
must respect; but if it is not a war, foreign nations 
having large commercial intercourse with the country 
will not respect a closing of insurgent ports by paper 
decrees only. If it is a war, the insurgent cruisers are 
to be treated by foreign citizens and officials at sea and 
in port as lawful belligerents. If it is not a war, those 
cruisers are pirates and may be treated as such." 

'Note 15, p. 35. 


Boyd, in liis note to Wheaton, 510a, says: "The law 
of "blockade, like that of contraband is a compromise 
between the conflicting rights of belligerents and neu- 

Rivier * says: "The ships of a state are alone compe- 
tent to blockade." 

Martens 2 says : "Maritime blockade can be established 
only by the supreme authority of a belligerent state." 

Despagnet 3 asserts that blockade is possible only after 
a declaration of war, and that blockade in civil wars is 
not in principle effective against neutrals, who are bound 
to respect only international hostilities properly so 

Bluntschli 4 maintains that the decree of a blockade is 
a governmental act. 

Phillimore 5 says : 

"A blockade is a high act of sovereign power; it is a 
right of a very severe nature, operating lawfully but 
often harshly, upon neutrals, and therefore not to be 
aggravated or extended by construction. 

"Sec. 299. It will be seen that there is no act by 
which a neutral more cleanly and deservedly forfeits the 
immunities of his national character than by violation 
of a belligerent blockade." 

It may be concluded that blockade by reasonable inter- 
pretation is a war measure permitted only to belliger- 
ents who are accorded other belligerent rights, and that 
it can be declared and executed by such competent bel- 
ligerents only. 

That parties entitled to establish blockade must be 
entitled to rights of belligerents is further evident from 
the consequences of a blockade as regards both ship and 
cargo. The ship may be confiscated if guilty of viola- 
tion of the blockade. The cargo is confiscated if belong- 
ing to the owners of the ship or directly associated in its 


1 Droit du Gens, II, p. 289. 4 Sec. 831, 1. 

-F. de, Droit Int., III. p. 288. 5 2d ed., Ill, sec. 288. 

"Droit Int., p. 635, sec. 620. 


This confiscation should take place only after proper 
evidence of guilt, which in case of so-called blockade by 
insurgents not having belligerents status is at least very 
difficult of proof. 

On the other hand, it has been held that : ' ' Ships armed 
by factions opposed to the constituted government and 
not recognized as belligerents lack all representative 
character; they may be taken on the high sea or in the 
waters of their former state when they violate the law of 
nations to the injury of third states or their citizens." 1 

In 1885, April 21, Mr. Wharton, Solicitor for the De- 
partment of State, enunciated the following : 

"When vessels belonging to citizens of the United 
Slates have been seized and are now navigated on the 
high seas by persons not representing any government or 
belligerent power recognized by the United States, such 
vessels may be captured and rescued by their owners, or 
by the United States cruisers acting for such owners ; 
and all force which is necessary for such purpose may 
be used to make the capture effectual." 

The United States Revised Statutes, sec. -1295, pro- 
vides : 

"The commander and crew of any merchant vessel of 
the United States owned wholly or in part by a citizen 
thereof may oppose and defend against any aggression, 
search, restraint, depredation or seizure which shall 
be attempted upon such vessel, or upon any other vessel 
so owned, by the commander or crew of any armed ves- 
sel whatsoever, not being a public armed vessel of some 
nation in amity with the United States, and may subdue 
and capture the same ; and may also retake any vessel 
so owned which may have been captured by the com- 
mander or crew of any such armed vessel, and send the 
same into any port of the United States." 

This section of the Revised Statutes makes it lawful for 
a private vessel to resist the aggression of an insurgent 
not yet recognized as a belligerent. 

The opinion of the court is that : 

"To justify the exercise of the right of blockade, and 
legalize the capture of a neutral vessel for violating it, 

1 Calvo, Droit Int.. sec. 501. 


a state of actual war must exist, and the neutral must 
have knowledge or notice that it is the intention of one 
belligerent to blockade the ports of the other. To create 
the right of blockade, and other belligerent rights, as of 
capture, as against neutrals, it is not necessary that the 
party claiming them should be at war with a separate 
and independent power; the parties to a civil war are in 
the same predicament as two nations who engage in a 
contest and have recourse to arms. A state of actual 
war may exist without any formal declaration of it by 
either party; and this is true of both a civil and a 
foreign war." ! 

It would seem from the concensus of authorities that 
blockade is strictly a war measure ; that blockade implies 
the existence of belligerents and neutrals; that blockade 
is a measure of such grave consequences to the neutral 
that it should be allowed only under circumstances ad- 
mitting of no doubt of the propriety of the action ; that 
the generally accepted rule that a blockade to be bind- 
ing must be effective, applies only to blockades properly 
instituted in the time of war ; and that the earlier action 
the United States has been to disregard action of the 
nature of an insurgent blockade. 

This would lead to the opinion that from authorities 
and general' principles, as from the earlier practice of 
the United States, an insurgent blockade, as in the situ- 
ation proposed, should not be regarded. 


(a) English. — T. J. Lawrence, in 2 1897, said: 
"In each [case] a group of powers planned and carried 
out concerted action with regard to both the parties in a 
maritime struggle between an established government 
and a revolted fleet acting in the interest of insurgents 
whose belligerency was not recognized. Any deductions 
we may* be able to draw from their proceedings have, 

'The Prize Cases, 3 Black., 635; 3 Whart. Dig., p. 362. 
2 Journal of the Royal United Service Institution, Vol. XLI, pt. 1, 
p. 14. 


therefore, a greater authority than conclusions based 
upon the action of one or two states only. 

"In January, 1891, a few clays after the commence- 
ment of the revolt of the Congressional party in Chile, 
the diplomatic representatives of Great Britain, Ger- 
many, France, and the United States met the Chilean 
minister for foreign affairs. They agreed that the 
blockade of Valparaiso and Iquique, notified by the re- 
volted fleet, was illegal, and instructed their consuls in 
the two ports to protest against it. This was done, and 
the protests were backed up by the concentration of a 
considerable number of neutral men-of-war in Chilean 
waters, the strongest force being the British squadron 
under Rear Admiral Hotham. The insurgents were 
careful to conciliate neutral opinion. They committed 
few violent acts against British shipping. Their block- 
ades were not enforced against foreign vessels ; and in 
February, 1891, at the instance of Rear Admiral Hotham, 
their naval commanders were instructed by the proper 
officer of their government that ' it is absolutely necessary 
to respect foreign interests, and to limit our vigilance in 
ships under a foreign flag solely to articles which are 
contraband of war.' This reservation of a right to 
capture contraband goods seems to have been acquiesed 
in by the British commander and the other neutral rep- 
resentatives. Rear Admiral Hotham contented himself 
with pointing out that cargoes of coal and provisions 
bona fide consigned to noncombatants could not be con- 
sidered contraband of war. He added that ' any seizure 
or detention of vessels carrying such cargoes is a gross 
breach of their neutral rights,' thus admitting by impli- 
cation the legality of the capture of neutral vessels laden 
with goods undoubtedly contraband. I can not, how- 
ever, understand on what principle a blockade can be 
held to be unlawful, while the seizure of contraband of 
war is lawful. Both operations are permitted to regular 
belligerents. The right to perform them is given by 
war, and by war alone. Neutrals are not bound to 
submit to either if there is no war in the full legal sense 
of the word. The distinction drawn between them seems 
to point to some confusion of ideas on the part of the 


British Foreign Office. I can not help thinking that it 
was not fully prepared for the problems which suddenly 
confronted it at this time; and I am confirmed in this 
view by finding a brief note to Messrs. Smith & Service, 
sent at the beginning of the insurrection. It runs thus : 
'Assuming effective blockade to exist, escort through it 
can not be given.' One ought not, perhaps, to lay much 
stress upon a telegraphic dispatch, forwarded in haste 
to meet an emergency; but certainly the words I have 
quoted appear to indicate that Great Britain was at that 
moment prepared to recognize the insurgent blockades, 
provided only they were effective. If that be so, she 
changed her mind very quickly, and I can not help 
thinking that in this case second thoughts were best. 
In other matters the theory was maintained that neutral 
powers had no concern with domestic disturbances and 
would not permit the exercise of warlike operations 
against their subjects. We declined to accept the 
Chilean Government's declaration of nonresponsibility 
for the acts of the insurgent fleet. We refused to recog- 
nize the validity of the decree whereby it closed ports in 
the effective possession of the insurgents, or to allow it 
to exact a second time from British vessels export duties 
which had been already paid to insurgent authorities in 
possession of the port of export. We declared we should 
hold it responsible for any loss that might fall upou 
British subjects if it carried out its proposed policy of 
destroying the nitrate factories, and we declined to put 
the foreign enlistment act into force in our ports. 
Further, it may be noted that in this case, as in all 
others, communications between neutral powers and the 
rebel leaders were made through the consuls and naval 
or military officers of the former, and not through their 
diplomatic representatives. 

"The next and last case need not detain us long. It 
commenced in September, 1893, and lasted till March, 
1804. During these seven months the greater part of 
the Brazilian fleet was in rebellion against the estab- 
lished government. Under Admirals de Mello and da 
Gama it occupied the inner harbor of Rio de Janeiro, 
and kept up an artillery duel with the forts and batteries 


that remained faithful to the regular authorities. As 
soon as the insurrection commenced the various foreign 
legations concerted measures to keep open trade and 
prevent a bombardment. On October 2, 1893, De Mello 
was informed by the commanders of the English, Amer- 
ican, French, Italian, and Portuguese naval forces before 
Rio that they would resist, by force if needful, any at- 
tack on the city; and the diplomatic representatives of 
the powers in question requested the government to re- 
frain from fortifying the inhabited and commercial 
quarters. Thus the insurgent admiral was to be deprived 
of any pretext for attack, and a sort of modus vivendi 
would be established. This was done, and in the course 
of the diplomatic correspondence on the subject the for- 
eign representatives disclaimed all design of interfering 
in the internal affairs of Brazil, and declared that their 
action would be limited to ' the necessity of protecting 
the general interests of humanity and the lives and 
propert}^ of their countrymen.' On the whole, these 
limitations were observed. Anything like a general 
bombardment of Rio de Janeiro was prevented. , Neu- 
tral merchantmen were protected while loading and un- 
loading, and, on one occasion, after an American boat 
had been fired upon by an insurgent vessel, the Ameri- 
can admiral, Benham, returned the fire from the Detroit. 
After this occurrence the insurgents became more care- 
ful. The principles which should guide foreign powers 
in such cases were laid down in a dispatch of January 
11, 1894, from the late Judge Gresham, then Secretary 
of State in President Cleveland's Cabinet, to Mr. Thomp- 
son, the American minister at Rio. The views therein 
expressed are, with one exception, so sound that I make 
no apology for quoting them. The American statesman 
wrote : ' An actual condition of hostilities existing, this 
Government has no desire to restrict the operations of 
either party at the expense of its effective conduct of 
systematic measures against the other. Our principal 
and obvious duty, apart from neutrality, is to guard 
against needless * * * interference * * * with 
the innocent and legitimate neutral interests of our citi- 
zens. Interruption of their commerce can be respected 

12107 5 


as a matter of right only when it takes two shapes — 
either by so conducting offensive and defensive opera- 
tions as to make it impossible to carry on commerce in 
the line of regular fire, or by resort to the expedient of 
an announced and effective blockade.' The exception to 
the general soundness of these views is to be found in 
the last clause. A fleet of irresponsible sea rovers has 
no right to establish a blockade against foreign vessels. 
The more effective the blockade, the worse is the out- 
rage. None but recognized belligerents in a regular war 
can exercise belligerent rights against neutral commerce. 
" We are now in a position to sum up the results of a 
long inquiry. Much uncertainty has been felt as to the 
rights and duties of neutral powers toward a maritime 
force whose belligerency has not been recognized. The 
rules of international law are deduced from the prac- 
tice of states, and in this matter practice has not been 
quite uniform or consistent. Considerations connected 
with piracy have been allowed to intrude into the 
question and darken its solution. But recent cases 
show a tendency toward the adoption of rules and prin- 
ciples which only require to be clearly stated and divested 
of extraneous matter in order to meet with general ac- 
ceptance. A state can not rid itself of responsibility 
for the acts of its rebel cruisers by proclaiming them 
pirates. Such a proclamation has no international 
validity. All it can do is to alter the status of the ves- 
sels according to the municipal law of the country to 
which they belong. Foreigners must regulate their con- 
duct toward such vessels without reference to a purely 
domestic question. If the ships in question attempt to 
establish blockades against neutral commerce, or bom- 
bard neutral property, or molest neutral vessels pursuing 
their lawful avocations on the high seas or in the terri- 
torial waters which are the scene of conflict, the injured 
neutral may proceed against them directly, and use 
what force is necessary to compel them to desist. It 
knows three things : There is no war; its subjects have 
been treated as if there were war; those who have 
inflicted this treatment have no recognized government 
behind them to be answerable for their misdeeds. Under 


sucli circumstances, it simply says to the parties con- 
cerned : ' Fight out your own quarrel with your own 
countrymen. With that I have no concern. But, unless 
and until you receive recognition as lawful belligerents, 
I will not submit to the exercise of belligerent rights 
against my subjects or my sea-borne commerce.' 
This is an intelligible rule. It rests upon admitted 
principles, and is a sure guide in practice. Moreover, it 
has the further advantage of avoiding all questions 
connected with piracy and limiting the action of the 
aggrieved power to what is necessary for the protection 
of its own interests. The injured neutral strikes di- 
rectly at the offender, just as it does when the ship of 
a recognized belligerent attempts to make a capture in 
one of its ports. Force would be used then, though the 
peccant vessel would not be in the position of an author- 
ized depredator. Much more, therefore, may it be used 
against ships which bear the commission of no recognized 
authorities. But in neither case does the use of it imply 
a pronouncement upon technicalities connected with the 
exact position in international law of the vessel attacked. 
If it be objected that there is no middle term between 
a belligerent and a pirate, and that a ship engaged in 
acts of depredation at sea must be the latter when it is 
not the former, I reply that the cases collected in this 
paper point to a condition midway between the two. v 

For this position between belligerency and piracy Mr. 
Lawrence would approve the term insurgency. The 
English view as expressed by Mr. Lawrence has met 
with general approval. 

(b) United States in recent years. — Recently the United 
States has not hesitated to admit the existence of insur- 
gency without acknowledging belligerency. 

The proclamation issued by President Cleveland, June 
12, 1895, announces that the island of Cuba was the "seat 
of serious civil disturbances accompanied by armed re- 
sistance to the authority of the established government 
of Spain." In his annual message, December 2, 1895, 
President Cleveland says : 

' ' Cuba is gravely disturbed. An insurrection, in some 
respects more active than the last preceding revolt, 


which continued from 18GS to 1878, now exists in a large 
part of the eastern interior of the island, menacing even 
some populations on the coast * * * this flagrant 
state of hostility * * * has entailed earnest effort 
on the part of this Government to enforce obedience to 
our neutrality laws and to prevent the territory of the 
United States from being abused as a vantage ground 
from which to aid those in arms against Spanish sover- 

In the case of the Three Friends, the Supreme Court 
of the United States regarded such admission as suffi- 
cient basis for action, stating: "We are thus judicially 
informed of the existence of an actual conflict of arms in 
resistance of a government with which the United States 
are on terms of peace and amity, although acknowledg- 
ment of the insurgents as belligerents by the political 
department has not taken place." 

It was held that this acknowledged status of insurgency 
brought into operation the domestic laws of neutrality. 

In the case of Underhill v. Hermandez 1 Chief Justice 
Fuller held 2 that: 

"Revolutions or insurrections may inconvenience other 
nations but by accommodation to the facts the applica- 
tion of settled rules is readily reached. And where the 
fact of the existence of war is in issue in the resistance of 
complaint of acts committed within foreign territory, it 
is not absolute prerequisite that the fact should be made 
out by an acknowledgment of belligerency as other 
recognition may be sufficient proof thereof." 

The United States admits that the existence of an 
insurrection brings into operation under certain circum- 
stances the neutrality laws and that insurrections may 
cause inconvenience to other nations. There is, however, 
a limit to the amount of inconvenience and sacrifice 
which a foreign state may be called upon by the legal 
state to undergo during an insurrection. 

" The legitimate government of the state in which the 
insurrection exists can not throw the burden of execu- 
ting its decrees upon a foreign state. This has been 

nmV. S., 250. *Dec. 29, 1897. 



recognized already in the case of decrees declaring in- 
surgents outlaws, which have no effect in determining 
the relations of foreign states to the insurgents." 

The position of Secretary Fish in the case of the 
insurgents against Haiti in 1869 was as follows: 

"Regarding them simply as armed cruisers of insur- 
gents not yet acknowledged by this Government to have 
attained belligerent rights, it is competent to the United 
States to deny and resist the exercise by those vessels or 
any other agents of the rebellion of the privileges which 
attend maritime war in respect to our citizens or their 
property entitled to our protection. We may or may 
not, at our option, as justice or policy may require, treat 
them as pirates in the absolute and unqualified sense ; or 
we may, as the circumstances of any actual case shall 
suggest, waive the extreme right and recognize, where 
facts warrant it, an actual intent on the part of the in- 
dividual offenders, not to depredate in a criminal sense 
and for private gain, but to capture and destroy jure 
belli. It is sufficient for the present purpose that the 
United States will not admit any commission or author- 
ity proceeding from the rebels as a justification or excuse 
for injury to persons or property entitled to the protec- 
tion of this Government. They will not tolerate the 
search or stopping by cruisers in the rebel service of 
vessels of the United States, nor any other act which is 
only privileged by recognized belligerency." 1 

He also maintains the right to destroy rebel vessels 
making aggressions upon persons or property entitled to 
the protection of the United States. 

The position of Admiral Benham in the Brazilian 
revolt of 1893-94 seems to be one justified by principles 
and reason: "that any movement on the part of the 
American merchant vessels during the continuance . of 
actual hostile operations was at their own risk; but any 
attempt upon the part of the insurgents to prevent legiti- 
mate movements of our merchant vessels at other times 
was not to be permitted, and that all possible protection 

1 Wharton Dig., sec. 381. 


was to be afforded such movements by the naval force of 
the United States assembled at Rio under his command." 

The action of insurgents till the recognition of belliger- 
ency being domestic action, the foreign vessel is respon- 
sible only so far as it comes within the range of "actual 
hostile operations." 

In the Haitien revolt of 1 902 the United States took 
the ground that the importance of the world's commer- 
cial relations was too great to permit interference with 
such relations by parties engaged in domestic struggles 
in which one or both the contestants have no responsible 
status. Other important states concurred in the action 
taken by the United States. This stronger policy is not 
only conducive to the protection of the world's commerce, 
but also to the promotion of peace by discouraging 
uprisings which are entered upon because of the personal 
ambitions of party leaders rather than because of desires 
to reform and benefit the state. 

During this Haitien insurrection of 1902 the com- 
mander of the U. S. S. Mackias had under his protection 
the foreign commerce in that region. He informed the 
commander of the insurgent gunboat of his position on 
August 10, 1902, as follows: 

"Sir: I wish to give you notice that I am charged 
with the protection of British, French, German, Italian, 
Spanish, Russian, and Cuban interests, as well as those 
of the United States. You are informed, also, that I am 
directed to prevent the bombardment of this city without 
due notice; also to prevent any interference with com- 
merce by the interruption of telegraph cables or the 
stoppage of steamers engaged in innocent trade with a 
friendly power. All interference excepting with Haitien 
interests I shall endeavor to prevent." 

United States Minister Powell telegraphed," Gonaives 
Government not recognized. Killick can not declare 
blockade of port; inform him. Give your protection to 
any American, Cuban, or foreign vessel that desires to 
enter cape." While, of course, the naval officer was in 
no way bound by this telegram of the minister, as the 
commander is responsible only to his own Department 


for his action, yet this telegram would: be taken as evi- 
dence of the attitude of the Department of State. 

Later the commander of the U. S. S. Machias informed 
Killick, the commander of the insurgent gunboat, that 
"until belligerent rights are accorded you, no right to 
visit or search any foreign vessel is permitted." With 
this position the representatives of other states agreed. 

The German gunboat Panther took a positive position 
in demanding, on September 6, 1902, the surrender of 
the insurrectionist gunboat Crete- a-Pierrot, which had, 
on September 2, taken possession of the munitions of war 
that were on the way to the provisional government of 
Haiti on the German merchant steamer Markomannia. 
The insurgent gunboat was set on fire before the surren- 
der was made. The Germans, seeing this, opened fire 
upon the Crete-a- Pierrot and completed its destruction. 
This action further manifests the disposition of the states 
having important commercial interests not to submit to 
interference with commerce by insurgents who have not 
acquired belligerent status. 

The drift of practice on the part of the United States 
has been toward a considerable leniency in dealing with 
those in revolt against constituted authorities. "It may 
be said that there has been a growing tendency to admit 
a hostile status short of belligerency of which it may be 
expedient for a state to take cognizance at a time when 
it is not expedient to recognize belli gerenc} r , that the 
actions of the party hostile to the parent state are not 
those of outlaws, and that the practice of the United 
States is to admit this hostile status as one affecting the 
operation of its domestic laws and changing the relations 
of its servants toward the parties to the conflict." 

General attitude toward insurgency. — It may now bo 
said that insurgency is often regarded as a fact which 
in a manner varying according to circumstances is ac- 
cepted in international practice. "The admission of 
this fact is by such domestic means as may seem ex- 
pedient. This admission is made with the object 
of bringing to the knowledge of citizens, subjects, and 
officers of the state such facts and conditions as may 
enable them to act properly. In the parent state the 


method of conducting the hostilities may be a sufficient 
act of admission, and in a foreign state the enforcement 
of a neutrality law. The admission of insurgency by a 
foreign state is a domestic act which can give no offense 
to the parent state, as might be the case in the recogni- 
tion of belligerency. Insurgency is not a crime from 
the point of view of international law. A status of in- 
surgency may entitle the insurgents to freedom of action 
in lines of hostile conflict which would not otherwise be 
accorded, as was seen in Brazil in 1894, and in Chile in 
1891. It is a status of potential belligerency which a 
state, for the purpose of domestic order, is obliged to 
cognize. The admiscion of insurgency does not place 
the foreign state under new internal obligations as would 
the recognition of belligerency, though it may make the 
execution of its domestic laws more burdensome. It 
admits the fact of hostilities without any intimation as 
to their extent, issue, righteousness, etc. * * * The 
admission of insurgency is the admission of an easily 
discovered fact. The recognition of belligerency in- 
volves not only a recognition of a fact, but also questions 
of policy touching man3 T other considerations than those 
consequent upon the simple existence of hostilities." 1 

The fact that insurgents have not enforced, against 
other than the vessels of the state to which they were 
opposed, the blockade which they had proclaimed is seen 
in the cases which have arisen. 

The right of insurgents to make captures of vessels 
not belonging to the parent state has not been recognized. 

The cases of Chile and Brazil are not sufficiently in 
harmony to warrant a precedent of recognition of insur- 
gent blockade. 

The possible putting into operation of domestic neu- 
trality laws has no effect in determining action in for- 
eign waters. 

The acknowledgment by a neutral of full right to block- 
ade on the part of insurgents not yet recognized as bellig- 
erents is a questionable act as regards the parent state. 

Blockade, from its consequences, should be reserved 
as far as possible within the laws of war for the status 
of full belligerency. 

1 Wilson, Insurgency, p. 16, Lectures, Naval War College, 1900. 


The status of insurgents is too indefinite to permit 
them to freely use against neutrals the extreme measure 
of blockade, and the consequent rights of visit, search, etc. 

Insurgents, unless they have obtained a status entitling 
them to be recognized as belligerents, would not have 
any prize courts acting upon sufficient authority to 
warrant third parties in allowing to them the right to 
inflict the penalties of violation of blockade. 

They have been permitted to seize, after making com- 
pensation, articles contraband on foreign A^essels which 
they may approach. This act, open to most serious ques- 
tion, does not, however, imply a right to seize and con- 
fiscate ship and cargo for violation of blockade. 

The position enunciated by Snow 1 is correct: "As to 
the position of insurgents in general, it is agreed that 
they have no belligerent rights. Their war vessels are 
not received in foreign ports, they can not establish a 
blockade which third powers will respect, and they must 
not interfere directly with the commerce of third states." 

Conclusions of the Institute of International Lair. — 
Many of the above and other considerations were dis- 
cussed by the Institute of International Law in its session 
of September, 1001, when it adopted the following resolu- 
tions : 

"Art. 5, Sec. 1. Une tierce puissance n'est pas tenue 
de reconnaitre aux in surges la qualite de belligerants, 
par cela seul qu'elle leur est attribute par le gouverne- 
ment du pays ou la guerre civile a eclate. 

"S 'C. '2. Tant qu'elle n'aura pas reconnu elle-meme la 
belligerance, elle n'est pas tenue de respecter les blocus 
e'tablis pas les insurges sur les portions du littoral occu- 
pies par le gouvernement regulier." 2 

"Art. 3. L'obligation du deaommagement disparait, 
lorsque les pensonnes lesees sont elles-memes cause de 
revenement qui a entraine le dommage. II n'existe pas, 
notamment, d'obligation d'indemniser ceux qui sont 
rentres dans le pays en contrevenant a un arrete d'ex- 
pulsion, ni ceux qui se rendent dans un pays ou veulent 
s'y livrer au commerce ou a l'industrie, alors qu'ils 

1 Int. Law, 2d ed., p. 12. s Quartrieme Commission. 


savent ou ont du. savoir que des troubles y out delate*, 
non plus que ceux qui s'etablissent ou sdjournent dans 
une contree ne presentant aucune securite* par suite de 
la presence de tribus sauvages, a moins que le gouverne- 
ment du pays n'ait donne aux immigrants des assurances 
particulieres." ' 

These resolutions show that the opinion of the authori- 
ties on international law is that third powers who have 
not recognized the belligerency of those in revolt against 
a constituted state are not under obligation to respect a 
so-called blockade established by such insurgents. The 
Institute admits, however, that a third power may not 
obtain damages for injuries which its subjects bring 
upon themselves. This position would agree with the 
position taken by Admiral Benham at Rio de Janeiro. 
This position as a whole seems to accord with the best 
opinion and with practice and is at the same time easily 

Conclusions. — 1. Blockade is a war measure and 
should be reserved for a state of war between responsi- 
ble belligerents. 

2. The precedents allowing certain interference with 
the commerce of states not concerned in insurrections 
has been based rather on jjolicy and convenience than 
upon principles of international law. Even this inter- 
ference must be in pursuance of orderly military opera- 
tions, and commerce must not " be at the mercy of every 
petty contest carried on by irresponsible insurgents and 
marauders under the name of war." 

3. Insurgents can not be allowed to establish a block- 
ade binding on foreign states because the status of insur- 
gents is uncertain and the enforcement of blockade 
involves the establishment of prize courts and the exer- 
cise of extreme measures which can be allowed by foreign 
states only after belligerency has been recognized. 

4. Insurgents should not be allowed to establish block- 
ades because the growing importance of the world's com- 
merce demands that for the well-being of mankind 
commerce should be in the fullest degree free, and that 
interference with it should be tolerated only after due 

Neuvieme Commission. 


notice of a contest of sufficient magnitude to constitute 

5. The Institute of International Law at its session in 
1901 declared that a third state which has not itself 
recognized the belligerency, is not bound to respect 
blockades established by insurgents upon portions of 
the coast occupied by the regular government. 

6. Public officials abroad, as of the State and Navy 
Departments, are entitled to instructions sufficiently 
definite to guide them in case of interference with foreign 
commerce by insurgents as the precedents and interpre- 
tations have been varied and confusing. 

Note. — In accordance with the sixth item of these 
conclusions, the Department of State, in a letter of No- 
vember 15, 1902 (which see below), set forth clearly the 
attitude of that Department upon the so-called "insur- 
gent blockade." The correspondence relative to this 
matter is herewith. 


Naval War College, 
Newport, R. J., November 7, 190 2. 

Sir: 1. I beg to lay before the Department certain 
suggestions respecting interference with commerce by 
insurgent vessels, which are in condensed form the out- 
come of the discussions upon this subject at the War 
College during the past summer. It is felt generally by 
naval officers that the subject is in a very unsatisfactory 
and indefinite status, and these suggestions are respect- 
fully offered as forming a basis of action. They have 
been prepared, at the request of the College, by Prof. 
George Grafton Wilson, who was in charge of the sub- 
ject of international law this last summer at the College. 
The full discussion of the subject at the College will 
shortly be in print as part of the "International Law 
Situations, with Solutions and Notes," of the present 
year, so that I shall not enter upon a discussion of the 
subject here. 

2. I inclose also Professor Wilson's letter to myself, 
which is explanatory of his paper. 


8. I would add that I believe these instructions to be in 
accord with the views of Dr. John Bassett Moore and 
Mr. Adee, of the Department of State, both of whom are 
high authorities in the subject. 

4. I would also add that the word "blockade," as used 
in Professor Wilson's paper, is in the strictly technical 
sense, as defined in the Declaration of Paris, April 1G, 
185G, and that the officers were unanimous in opinion 
that the use of the word "blockade" should be restricted 
to this technical meaning. 

Very respectfully, F. E. Chadwick, 

Captain, U. S. N., President. 

The Secretary of the Navy, 

Navy Department, Washington, D. C. 
(Through Bureau of Navigation.) 


Brown University, 
Providence, R. I., October 11, 1002. 

Capt. F. E. Chadwick, U. S. N., 

President Sarah War College, Newport, R. I. 

Dear Sir : I inclose a statement in a brief form of the 
general reasons why there should be some understanding 
in regard to what has been unfortunately termed "insur- 
gent blockade;" also a form for instructions which 
might be issued, and a resume of the reasons why such 
instructions as those particularly mentioned might be 
issued. I think these cover the points upon which there 
was agreement among the officers and those which seem 
most important. These instructions will leave the De- 
partment at Washington to decide, except in the most 
unusual cases, what should be done. With the growing 
importance of our commerce some such definite stand 
entirely within the law and precedent is necessary. 

The more extended treatment of this matter will 
appear in the solutions to the "Situations." If any con- 
ference is held on this matter, and it seems advisable to 
you, I will try to go into the subject more fully before 
the members. 

Very truly yours, 

George Grafton Wilson. 


The limits of interference with the world's commerce 
permissible to insurgents not yet recognized as belliger- 
ents should be more clearly determined : 

1. Because the importance of the world's commercial 
relations demands freedom only to be denied in the case 
of grave public necessity. 

2. In order that insurgents, often irresponsible, may 
not unduly interfere with the commerce and rights of 
foreign citizens. 

3. In order that public officials may not be misled by 
the lack of agreement in the precedents relating to the 
treatment of insurgents interfering with foreign com- 

4. Particularly because frequently called upon to act 
when in the neighborhood of such insurrectionary move- 
ments, naval officers are entitled to instructions more 
definite than those now in force. 

The following propositions are offered as bases for 
instructions : 

1. Insurgents not recognized as belligerents have not 
the right to establish a blockade, nor have they the right 
to exercise in regard to the commerce of the United 
States any of the rights appertaining to the establish- 
ment of a blockade. 

2. When insurgents actually have before a port of the 
state against which they are in insurrection a force suf- 
ficient, if belligerency already had been recognized, to 
maintain an effective blockade, the United States Gov- 
ernment may admit that such insurgent force may prevent 
the entry of United States commerce. 

3. The insurgents, even after such admission, may use 
against United States commerce only such force, how- 
ever, as is necessary to prevent the entry of merchant 
vessels already notified by the officer of the insurgents 
before the port that the United States has admitted its 
closure by the insurgents, and force can be used only 
while such vessel is actually attempting to pass in or out 
of the port after such notification. 

■4. In genera], the naval officers of the United States 
will permit no interference with ordinary commerce of 


the United States unless they are duly instructed by their 

In regard to the proposition that insurgents have not 
the right to establish a blockade, it may be said that this 
is the position assumed by practically all the leading 
authorities on international law. 

Blockade as defined by the Declaration of Paris, April 
10, 185G, has often been cited as applicable to every at- 
tempt to prevent entry to a port. The clause thus used, 
"Blockade in order to be binding must be effective," was 
specifically made with reference to a state of war involv- 
ing belligerents and neutrals and there was no thought 
that it would be extended to insurgents. The declaration 
states that it was made with the idea of introducing "into 
international relations fixed principles," because "that 
maritime law in the time of war has long been the sub- 
ject of deplorable disputes," and "that the uncertainty 
of the law and of the duties in such a matter give rise to 
difference between neutrals and belligerents which may 
occasion serious difficulty and even conflicts." 

Insurgents have not a status that would justify foreign 
states in allowing them to exercise the rights of visit, 
search, seizure, and other rights appertaining to the en- 
forcement of a blockade. In general, responsible prize 
courts are necessary. Such courts insurgents not yet 
recognized as belligerents could hardly possess, and even 
if they did possess such courts their decrees would be of 
doubtful authority. The implication that insurgents 
may have any such rights should be most carefully 

The Institute of International Law at its twentieth 
session, in September, 1901, adopted the following reso- 
lutions : 

Art. 5, Sec. 1. Une tierce puissance n'est pas tenue de 
reconnaitre aux insurges la qualite de belligerants, par 
cela seul qu'elle leur est arrtibue'e par le gouvernement 
du pays ou la guerre civile a eclate. 

Sec. 2. Taut qu'elle n'aura pas reconnu elle-meme la 
belligerance, elle n'est pas tenue de respecter les blocus 
etablis par les insurges sur les portions du littoral occu- 
pies par le gouvernement regulier. 


In practice the United States lias never allowed insur- 
gents to enforce against its commerce those rights which 
blockade in the proper sense would carry, and other 
states have often denied this right to insurgents. As 
was said in the case of the Ambrose Light, commerce 
must not " be at the mercy of every petty contest carried 
on by irresponsible insurgents under the name of war." 

As the earliest and latest opinions agree and practice 
and reason support the position that insurgents have not 
the right to establish a blockade, it seems expedient that 
instructions be issued to this effect. 

The aim of the remaining propositions is to permit the 
insurgents to exercise in regard to the commerce of the 
United States such power as this Government acknowl- 
edges that they actually possess and to exercise this 
power in a regular way with the minimum of damage to 
commerce and the least danger of injustice. These in- 
structions would relieve the naval officer of the respon- 
sibility for the decision upon questions which should 
properly be decided by the Government. 

The aim of these instructions, as a whole, is to allow to 
insurgents the exercise of that power which they actually 
possess and that only, without attributing to them any 
of those extreme powers and rights that might belong to 
recognized belligerents under similar circumstances. 

• [Copy.] 

Department of State, 

Washington, 7). C, November 15, 1902. 

The Honorable 

The Secretary of the Navy. 

Sir : I have the honor to acknowledge the receipt of 
the letter of the Acting Secretary of the Navy (346855 B), 
under date of November 12, inclosing copy of a letter 
from the president of the Naval War College containing 
certain suggestions respecting interference with com- 
merce by insurgent vessels, and requesting my comments 

While as a rule this Department is reluctant to express, 
of record, general opinions or comments upon questions 


of a more or less academic character, the papers you 
submit to me, and particularly the statement prepared 
by Professor Wilson and submitted to Capt. F. E. Chad- 
wick, may justify some general observations. 

Cases involving assertion of the rights of insurgent 
" blockade" are necessarily exceptional, to be considered 
as governed by exigent circumstances rather than by 

In dealing with concrete cases arising within the offi- 
cial cognizance of the Department of State and embracing 
points of international law like those presented in Mr. 
Wilson's memorandum, this Department endeavors to 
interpret the consensus of international law authorities 
with due regard to the precise significance of the term 
" blockade." 

Blockade of enemy ports is, in its strict sense, con- 
ceived to be a definite act of internationally responsible 
sovereign in the exercise of a right of belligerency. Its 
exercise involves the successive stages of, first, procla- 
mation by a sovereign state of the purpose to enforce a 
blockade from an announced date. Such proclamation 
is entitled to respect by other sovereigns conditionally 
on the blockade proving effective. Second, warning of 
vessels approaching the blockaded port under circum- 
stances preventing their having previous actual or pre- 
sumptive knowledge of the international proclamation 
of blockade. Third, seizure of a vessel attempting to 
run the blockade. Fourth, adjudication of the question 
of good prize by a competent court of admiralty of the 
blockading sovereign. 

Insurgent " blockade," on the other hand, is excep- 
tional, being a function of hostility alone, and the right 
it involves is that of closure of avenues by which aid 
may reach the enemy. 

In the case of an unrecognized insurgent, the fore- 
going conditions do not join. An insurgent power is not 
a sovereign maintaining equal relations with other sov- 
ereigns, so that an insurgent proclamation of blockade 
does not rest on the same footing as one issued by a 
recognized sovereign power. The seizure of a vessel 
attempting to run an insurgent blockade is not generally 

NO "insurgent blockade/' 81 

followed by admiralty proceedings for condemnation as 
good prize, and if such proceedings were nominally 
resorted to a decree of the condemning court would lack 
the title to that international respect which is due from 
sovereign states to the judicial act of a sovereign. The 
judicial power being a coordinate branch of government, 
recognition of the government itself is a condition prece- 
dent to the recognition of the competency of its courts 
and the acceptance of their judgments as internation- 
ally valid. 

To found a general right of insurgent blockade upon 
the recognition of belligerency of an insurgent by one 
or a few foreign powers would introduce an element of 
uncertainty. The scale on which hostilities are con- 
ducted by the insurgents must be considered. In point of 
fact, the insurgents may be in a physical position to make 
war against the titular authority as effectively as one 
sovereign could against another. Belligerency is a more 
or less notorious fact of which another government, 
whose commercial interests are affected by its existence, 
may take cognizance by proclaiming neutrality toward 
the contending parties, but such action does not of itself 
alter the relations of other governments which have not 
taken cognizance of the existence of hostilities. Recog- 
nition of insurgent belligerency could merely imply the 
acquiescence by the recognizing government in the 
insurgent seizure of shipping flying the flag of the recog- 
nizing state. It could certainly not create a right on 
the part of the insurgents to seize the shipping of a 
state which has not recognized their belligerency. 

It seems important to discriminate between the claim 
of a belligerent to exercise quasi sovereign rights in 
accordance with the tenets of international law and the 
conduct of hostilities by an insurgent against the titular 

The formal right of the sovereign extends to acts on 
the high seas, while an insurgent's right to cripple his 
enemy by any usual hostile means is essentially domestic 
within the territory of the titular sovereign whose 
authority is contested. To deny to an insurgent the 

12107 G 


right to prevent the enemy from receiving material aid 
can not well be justified without denying the right of 
revolution. If foreign vessels carrying aid to the ene- 
mies of the insurgents are interfered with within the 
territorial limits, that is apparently a purely military 
act incident to the conduct of hostilities, and, like any 
other insurgent interference with foreign property with- 
in the theater of insurrection, is effected at the insur- 
gent's risk. 

To apply these observations to the four points pre- 
sen ted in Professor Wilson's memorandum, I may 
remark : 

1. Insurgents not yet recognized as possessing the 
attributes of full belligerency can not establish a block- 
ade according to the definition of international law. 

2. Insurgents actually having before the port of the 
state against which they are in insurrection a force suffi- 
cient, if belligerency had been recognized, to maintain 
an international law blockade, may not be materially 
able to enforce the conditions of a true blockade upon 
foreign vessels upon the high seas even though they be 
approaching the port. Within the territorial limits of 
the country, their right to prevent the access of supplies 
to their enemy is practically the same on water as on 
land — a defensive act in the line of hostility to the 

3. There is no call for the Government of the United 
States to admit in advance the ability of the insurgents 
to close* within the territorial limits, avenues of access to 
their enemy. That is a question of fact to be dealt with 
as it arises. But in no case would the insurgents be jus- 
tified in treating as an enemy a neutral vessel navigating 
the internal waters — their only right being, as hostiles, 
to prevent the access of supplies to their domestic enemy. 
The exercise of this power is restricted to the precise 
end to be accomplished. No right of confiscation or 
destruction of foreign property in such circumstances 
could well be recognized, and any act of injury so com- 
mitted against foreigners would necessarily be at the 
risk of the insurgents. The question of the nature and 


mode of the redress which may be open to the gov- 
ernment of the injured foreigners in such a case hardly 
comes within the purview of your inquiry, but I may 
refer to the precedents heretofore established by this 
Government in enunciation of the right to recapture 
American vessels seized by insurgents. 

I have the honor to be, sir, your obedient servant, 

John Hay. 


Several powers, not including the United States, have 
united in proclaiming a pacific blockade of minor state 
K. A merchant vessel of the United States bound for a 
port of K approaches this port and is warned by a vessel 
representative of the blockading powers not to enter 
under penalty of violation of blockade. The captain of 
the merchant vessel appeals to the commander of a 
United States vessel of war to convoy him through, or 
in some other manner secure for his vessel entrance to 
the port. 

What action should the commander take, and why? 


The commander of the United States vessel of war 
should request of the commander of the forces main- 
taining the pacific blockade that the merchant vessel of 
the United States enter port K. If this is not per- 
mitted, he should inform the commander of the forces 
maintaining the pacific blockade that the United States 
does not acknowledge the right in time of peace to thus 
interrupt commerce of powers not concerned in the 
blockade, and he should give formal notice that the 
United States would hold the blockading states respon- 



General opinions in regard to pacific blockade. — Theo- 
retically, blockade of any kind is strictly a measure of 
war, but in spite of this theoretical position the practice 
of the last three-quarters of a century has seen the insti- 
tution of no less than sixteen so-called blockades while 
there was formally a state of peace. These have been 
termed pacific blockades, and however objectionable such 
a term may be theoretically, the fact must be considered. 



These pacific blockades have not shown a uniform prac- 
tice in the relations between the parties to the blockade 
and those not concerned who, for convenience, may be 
called neutrals, though not properly so, as "neutrals" 
imply "belligerents," and therefore war. 

Before 1850 the blockades called pacific generally 
treated all flags alike. The French at Formosa in 1884 
endeavored to extend the field of operations so as to cover 
neutrals; so again, when France blockaded Menam in 
1883, and in the case of the blockade of Crete by the 
powers in 1897, the inclination was to extend the applica- 
tion beyond the powers concerned. 

The blockade of Greece in 1886 was distinctly aimed 
against the Greek flag. 

The review of recent blockades undertaken directly 
for the advantage of the state initiating them, and not 
on the grounds of public policy, shows that these block- 
ades undertaken on the narrower grounds have not been 
sanctioned in acting against third parties. 

"It is now generally admitted, however, that neutral 
commerce is not to be disturbed during pacific block- 
ades." 1 

"Neutrals would not to-day submit to the restrictions 
placed upon their trade by measures of blockade unless 
instituted in the prosecution of open declared war." 2 

Lord Granville wrote to Mr. Wadding ton, November 
11, 1881, at the time of the so-called pacific blockade of 
Formosa : 

"The contention of the French Government that a 
'pacific blockade' confers on the blockading power the 
right to capture and condemn the ships of third nations 
for a breach of such a blockade is in conflict with well- 
established principles of international law." 3 

Thus the plan of France to use measures justifiable 
only in war was denied. If those blockading desire 
themselves to have the advantage of such rights as are 
conferred upon belligerents, they must become bellig- 
erents by instituting a state of war. 

'H. Taylor, Int. Pub. Law, 1901, p. 445. 

2 Glass, Marine Int. Law, Part IV, sec. 19. 

3 Par. Papers, France, No. 1, 1885. 


Walker 1 says: 

"It may be questioned whether, in its wider extension, 
pacific blockade must not justify itself rather as a mode 
of warfare limited in operation than as a means of re- 
dress falling short of war ; for the operation of such a 
measure may extend either to subjects of the blockading 
and blockaded powers only, or to the vessels of all 
nations! If it be confined to subjects of the parties 
directly engaged, its legitimacy can hardly be matter 
for serious consideration. The less is justified in the 
greater, and the blockaded sovereign has it in his power 
either to free himself from the inconvenience by the 
grant of redress, or to resent it by the declaration of war. 

"If, however, the trade of neutrals be affected by the 
blockade, those neutrals may well protest against inter- 
ference with their traffic not fully and completely justi- 
fiable. For them such protest must be matter of policy. 
Pacific blockade may be, and doubtless is, the less of two 
evils; to refuse to recognize it may be to force the 
offended state to legalize its acts by instituting a regular 
blockade as a measure of war." 

Bonfils summarizes the situation of the majority 
(Fauchille's edition of his "Droit International Public") 
when he says : 

"Sec. 992. We think, with M. F. de Martens (t. Ill, 
p. 173), that the so-called pacific blockade can not be 
justified, either in the name of humanity or from the 
point of view of good sense. The catastrophe of Nava- 
rino shows that it may have a bloody ending. In time 
of peace, reprisals ought to injure only the state which 
provokes them. The pacific blockade can produce seri- 
ous results only when neutral states are obliged to 
respect it. But there can be no question of neutrality, 
properly so called, in time of peace. ~No obligation, 
in the proper and juridical sense, can oblige third 
states to submit to the conditions of a pacific blockade. 
But under these limitations the blockade has neither 
meaning nor value. If it is maintained with regard 
to third states, it injures their rights and legitimate 
interests. * * * 

1 Science of Int. Law, p. 157. 



Sec. 1)93. For powers of the first rank, tlie pacific 
blockade constitutes a means, little burdensome, there- 
fore more alluring, of making states of the second rank 
to submit to all kinds of vexations and annoyances. 
At bottom it is simply an act of war, a fact of hostility. 
In resorting to pacific blockade, the powers do not 
endeavor to escape war itself, but only the inconven- 
iences and main obligations which war brings. It is 
considerations of interest, and not considerations of 
humanity, which urge maritime powers to resort to 
this means of constraint, which causes great losses to 
commerce in general." 

Resume. — It would seem from the weight of authori- 
ties and from the majority of later cases, that pacific 
blockades should not bear upon third states except as 
they are affected by the constraint directly applied to 
the state blockaded, i. e., the vessels of a third state 
should be entirely free to go and come while such meas- 
ures of constraint as may be decided upon may be applied 
to the blockaded state. 

If the need for interruption of relations between the 
blockaded state and third states is sufficiently serious to 
require the seizure of neutral vessels, it would seem to 
warrant the institution of a regular blockade involving 
a state of war. 

If only the mild constraint which is short of war, the 
blockade affecting merely the blockaded state's com- 
merce, is necessary, then pacific blockade, though it 
works inconvenience, may be legitimate. 

Snow r 's International Law, * Manual Naval "War Col- 
lege, says, after citing instances : 

"It can thus be seen that without admitting the pacific 
blockade to be an established legal means of restraint or 
reprisal short of war, still the general tendency of writ- 
ers, and more particularly of the great maritime states, 
is to favor its exercise, and while it may be desirable 
that other powers than those concerned should not be 
involved, still a blockade not applying to all maritime 
powers would not, as a rule, be effective or secure the 
results for which it was instituted." 

1 P. 74. 


The blockade of Crete, 1897+ — The official relations of 
the United States to the blockade of Crete in 1897 can 
be seen from the following communications. ! 

[Mr. ('inter to Mr. Sherman. Telegram.] 

Embassy of the United States, 

London, March 21 (?), 1897. 

Officially notified blockade of Crete by powers March 21. 


[Mr. Carter to Mr. Sherman.] 

ISTo. 887. Embassy of the United States, 

London, March 21, 1897. 

Sir : I have the honor to inclose herewith a'copy of my 
telegram, sent from this embassy to-day, together with a 
copy of a note received from the foreign office under date 
of March 20, 1897, announcing the intended establish- 
ment on the 21st of March of a blockade of the island 
of Crete by the combined British, Austro-Hungarian, 
French, German, Italian, and Russian naval forces, and 
transmitting three copies of notifications inserted in a 
supplement to the London Gazette of the 19th instant, 
two of which I have also the honor to inclose herewith, 
in order that they may become known to the citizens of 
the United States. 

I have duly acknowledged the reception of the note 
above mentioned, and have informed Lord Salisbury that 
a copy thereof had been forwarded to my Government. 
I have the honor, etc., 

John Rudgely Carter. 

(Inclosurein No. 887.) [Mr. Villiers to Mr. Carter.] 

Foreign Office, March 20, 1897. 

Sir : I have the honor to transmit to you three copies 
of notifications inserted in a supplement to the London 
Gazette, of the 19th instant, announcing the intended 
establishment on the 21st March of a blockade of the 
island of Crete by the combined British, Austro-Hunga- 
rian, French, German, Italian, and Russian forces. 

J For. Rel. U. S., 1897, pp. 253-255. 


I request that you will have the goodness to transmit 
copies of these notifications to your Government, in order 
that they may, through that channel, become known to 
the citizens of the United States. 
I have the honor, etc., 


{In the absence of the Marquis: of Salisbury.) 

(Subinclosure in No, 887. — From the Supplement to the London Gazette of Friday, March 

19, 1897.) 

Foreign Office, March 19, 1897. 

It is hereby notified that the Marquis of Salisbury, 
K. G., Her Majesty's principal secretary of state for for- 
eign affairs, has received a telegraphic dispatch from 
Rear Admiral Harris, commanding Her Majesty's naval 
forces in Cretan waters, addressed to lords commissioners 
of the admiralty, and dated the 18th of March, announcing 
that the admirals in command of the British, Austro- 
Hungarian, French, German, Italian, and Russian naval 
forces have decided to put the island of Crete in a state 
of blockade, commencing the 21st of March, 8 a. m. 

The blockade will be general for all ships under the 
Greek flag. 

Ships of the six powers, or neutral powers, may enter 
into the ports occupied by the powers and land their 
merchandise, but only if it is not for the Greek troops 
or the interior of the island. These ships may be visited 
by the ships of the international fleets. 

The limits of the blockade are comprised between 
23° 24' and 26° 30' east of Greenwich, and 35° 48' and 
34° 45' north latitude. 

[Sir Julian Pauncefote to Mr. Sherman.] 

British Embassy, 

Washington, March &£, 1897. 

Sir : On behalf of my government and at the request 
of my colleagues, the representatives of Austria-Hun- 
gary, France, Germany, Italy, and Russia, I have the 
honor to transmit the inclosed communication relative 
to certain measures taken by the naval forces of the 
great powers, signatories of the treaty of Berlin, in 
the waters of the island of Crete. 


I desire to explain that this communication has not 
been delivered on the date which it bears, owing to an 
accidental delay in the receipt of their instructions by 
some of my colleagues. 

I avail myself, etc., 

Julian Pauncefote. 


Washington, March 20, 1897. 

The undersigned, under instructions from their re- 
spective governments, have the honor to notify the 
Government of the United States that the admirals in 
command of the forces of Austria-Hungary, France, 
Germany, Great Britain, Italy, and Russia, in Cretan 
waters, have decided to put the island of Crete in a state 
of blockade, commencing the 21st instant at 8 a. m. 

The blockade will be general for all ships under the 
Greek flag. Ships of the six powers or neutral powers 
may enter into the ports occupied by the powers and 
land their merchandise, but only if it is not for the Greek 
troops or the interior of the island. The ships may be 
visited by the ships of the international fleets. 

The limits of the blockade are comprised between 23° 
24' and 20° 30' longitude east of Greenwich, and 35° 48' 
and 34° 45' north latitude. 

Julian Pauncefote, 

H. B. 31. Ambassador. 

Ambassadeur cle la Republique Francaise. 


Ambassiatore cV Italia. 
Thielmann, etc. 
Von Hengelmuller, etc. 
kotzsbue, etc. 

[Mr. Sherman to Sir Julian Pauncefote.] 

623. Department of State, 

Washington, March 26, 1897. 

Excellency : I have the honor to acknowledge the 
receipt of your note of the 24th instant, transmitting to 


me a communication under date of March 20, 1897, signed 
by yourself and the representatives of France, Italy, Ger- 
many, Austria-Hungary, and Russia at this capital, 
relative to certain measures taken by the naval forces of 
the great powers, signatories of the treaty of Berlin, in 
the waters of the island of Crete. 

As the United States is not a signatory of the treaty 
of Berlin, nor otherwise amenable to the engagements 
thereof, 1 confine myself to taking note of the communi- 
cation, not conceding the right to make such a blockade 
as referred to in your communication, and reserving the 
consideration of all international rights and of any ques- 
tion which may in any way affect the commerce or inter- 
ests of the United States. 

I have, etc., John Sherman. 

[Sir Julian Pauncefote to Mr. May.] 

British Embassy, 

Washington, December IS, 1808. 

Sir: On behalf and at the request of my colleagues, 
the representatives of France, Italy, and Russia, as well 
as on behalf of my government, I have the honor to 
transmit to you for the information of your government 
the inclosed communication relative to the raising of the 
blockade in Cretan waters, the institution of which I 
had the honor to notify to Mr. Sherman on March 24, 
last year. 

I have, etc., Julian Pauncefote. 

[Inclosure in British note of December 13, 1898.] 

Washington, December 13, 1898. 

We, the undersigned, representatives of France, Great 
Britain, Italy, and Russia, have the honor to inform the 
Government of the United States that the admirals of 
the four powers in Cretan waters have issued a notice 
that the blockade of Crete has been raised from the 5th 

'For. Rel. U. S., 1898, p. 384. 


of December instant, but that the importation of arms 
and munitions of war is absolutely prohibited. 

Julian Pauncefote, 

H. B. M. Ambassador. 
Count Cassini, 

Ambassador of Russia. 
Charge (7' Affaires de France. 

G. C. Vinci, 

Charge (V Affaires d'ltalie. 

The blockade of Crete was, in a way, a police measure 
in accord with the provisions of the treaty of Berlin. It 
could properly effect the parties to it, but it has been held 
that it should not reach to neutrals. 

In offering an opinion upon certain questions concern- 
ing pacific blockade, having in mind the action in Crete 
in 1897, Sir Walter Phillimore * said: "I am also of the 
opinion that, from the point of view of international law, 
it would be a misconception of the rules to seize a private 
vessel bearing the flag of a nation having no active or 
passive part in the so-called pacific blockade — bearing, 
for instance, the American or Dutch flag. 

The right of blockade, of which the character is very 
burdensome for neutrals, is exclusively a right of war." 

Mr. Lawrence, reviewing this blockade of Crete in 
1897, says: "In 1896 the Christians of Crete rose in in- 
surrection against Turkish misrule, and in February, 
1897, proclaimed the union of the island with the Greek 
Kingdom. The great powers of Europe were determined 
not to allow the reopening of the dangerous Eastern 
question. They, therefore, forbade the incorporation of 
Crete with Greece; while, at the same time, they endeav- 
ored to bring about such changes in the government as 
would put an end to the worst evils and satisfy to some 
extent the aspirations of the Cretan Christians. But the 
Greeks and the islanders were determined upon union. A 
force of Greek regular soldiers under Colonel Yasso, was 
landed in Crete, and Greek volunteers, in considerable 
numbers, went to the aid of the insurgents. The powers 

1 Jour, du Droit Int. Priv., 24, p. 518. 


in return sent a mixed force to occupy the Cretan ports, 
and instituted by means of an international squadron 
what was termed a pacific blockade of the island. It 
commenced on March 21, 1807, and was general so far as 
Greek vessels were concerned. Other ships were allowed 
to come into the ports occupied by the powers and dis- 
embark their merchandise, provided that it was not 
destined for the Greek troops or the interior, where the 
insurgents held out among the mountains. Thus the 
vessels of powers not concerned in the dispute were in- 
terfered with in certain circumstances. The area of their 
trade was arbitrarily circumscribed in time of peace for 
the attainment of ends with which they had no concern. 
The object of the powers was doubtless excellent. They 
were doing the police work of eastern Europe; but they 
did it in such a clumsy fashion that they violated the 
law of pacific blockade which had just emerged from 
chaos (see sec. 159) mainly through their own proceed- 
ings in the similar case of Greece, little more than ten 
years before. Then the blockade had been directed 
against Greek ships alone. Why was it now extended 
to non-Greek vessels ? Doubtless, the extension helped 
to prevent supplies from reaching the insurgents ; but 
the prolongation of the insurrection was largely due to 
the inability of the European concert to agree upon any 
acceptable settlement, such as was arrived at in the fol- 
lowing year, when, after the withdrawal of Germany 
and Austria from the concert, autonomous constitution 
was given to the island, and Prince George of Greece 
was made high commissioner under the suzerainty of 
the Sultan. The delay of the powers to act quickly and 
reasonably in the political sphere led them to resort 
to acts in the military sphere, which were not the less 
objectionable because none of those who suffered pro- 
tested against them. Their action has been defended on 
the grounds that they were in some sort agents of the 
Sultan (whom all the time they were coercing), and that 
as the police force of Europe they were at liberty to act 
as they pleased. The first reason is amusing, the second 
dangerous. Those who claim to make and execute the 
law should be specially careful to observe it. The result 


of the action of the great powers in Crete is, that the 
nascent law of pacific blockade has gone back into the 
region of doubt and uncertainty." 1 

Franco- Chinese operations, 188 Jf. — At the time of the 
Franco-Chinese difficulty in 1884, Minister Young wrote 
to Secretary Frelinghuysen under date of September 1G, 
1 884, from Peking : 2 

"Sir: There has been much discussion in our diplo- 
matic body as to the rights and duties of neutrals during 
the present complications between China and France. 
In my dispatch, No. 505, dated September 7, I inclosed 
a decree from the throne which appeared in the Peking 
Gazette August 27. 'In spite of our desire not to disturb 
the tranquillity, the pacific relations between France and 
us have been broken by the affair at Annam in regard to 
the matter of indemnity. ' Under ordinary circumstances 
such a- proclamation would be regarded as indicative of 
the actual existence of war, and could impose upon us 
the duties of neutrals. 

"It has been impossible to obtain from the prince, 
with whom I have had several conversations, any decla- 
ration to the effect that China regards herself at war 
with France. I have asked for an official copy of the 
decree, but the answer is that decrees from the throne 
are domestic incidents and do not concern legations. 

"I learn, furthermore, that M. Jules Ferry has said 
to European governments that France does not regard 
herself as at war with China. A proclamation issued by 
M. Lemaire, consul general of France at Shanghai, con- 
firms this belief. At the same time the French at 
Kealing forcibly prevent a German ship from landing 
cargo, and the captain, in doing so, avers that he com- 
mits a 'belligerent act.' 

"The question lias assumed practical shape in various 
instances. The consul general and the consul at Tien- 
tsin have been asked whether American ships could 
carry munitions of war for Chinese. I have informed 
them that until war is declared our vessels are at liberty 
to carry any lawful merchandise. The consul at Foo- 
chow writes that he had forbidden American pilots to 

1 Int. Law, 2d ed., p. 670. *For. Rel. 1884, p. 103. 


serve on French ships. I have said to him that until we 
know war exists, American pilots are free to accept any 

The various representatives generally took the posi- 
tion that until either China or France made it officially 
known that there was war, they would assume none of 
the duties of neutrality, as Mr. Young said, "I see no 
reason for imposing the obligations of neutrality upon 
our people until we know war exists." With this posi- 
tion the English, Japanese, and Russian representatives 

Although it was held by some that de facto war existed, 
no state actually proclaimed neutrality. Great Britain 
put into operation her foreign enlistment act as a domes- 
tic measure, and France agreed not to exercise full 
belligerent acts in way of search and seizure. 

The letter of Lord Granville to M. Waddington 1 said 
that Great Britain would put in operation the foreign 
enlistment act merely if France limited its operations 
to certain regions, and if France would refrain from the 
exercise of belligerent rights as regards neutral vessels 
in the high seas. 

The blockade of Formosa was announced October 20, 
1884, to be effective from October 23. The proclamation 
allowed three days for friendly vessels to depart and 
announced that it would be effective against all vessels 
conformably to the international law and treaties in 

In a letter of November 11, 1884, the English minister 
said that the pretention of the French Government, that 
a pacific blockade conferred on the power which estab- 
lished it the right to seize and condemn ships of a third 
power for violation of a blockade, is in opposition to the 
opinion of the most eminent statesmen and jurists of 
France, to the decisions of the courts, and to the well- 
established principles of international law. Further, 
he says the condition then prevailing was a state of war 
between France and China. 

1 Blue Book, France, I, 1885, p. 3. 


China on August 27, 1884, issued the following to the 
foreign representatives : 

" The French fleet has commenced hostilities at Foo- 
chow. The duty of neutral powers being to maintain 
neutrality in accord with the law of nations, we re- 
spectfully request you to give stringent orders to your 
citizens that they refrain from furnishing coal to French 

They also request that no cipher dispatches he trans- 
mitted for France, and of Japan that no sales of horses 
be made. 

The ministers of the United States, England, and 
Russia saw no reason to act in regard to coal and. mes- 
sages if war did not exist. 

France, on the other hand, wished to consider rice con- 
traband and coal free, the last on the ground that war 
was not declared. 1 

Whatever may be maintained in regard to pacific 
blockade, this was certainly war with an attempt to 
qualify it in area and range of operations. 

The attempt of France was to establish a war block- 
ade while assuming only the consequences of a pacific 

Conclusions. — (a) The commander of the United States 
vessel of war should in no way recognize the right of 
the powers to institute such a pacific blockade affecting 
the United States. 

(b) The commander should in no way acknowledge the 
right of the X30wers to enforce such a blockade against 
neutral commerce. 

He would be under obligations to maintain this posi- 
sition by the action of Secretary Sherman, who replied 
to the proclamation of the pacific blockade: 

" I confine myself to taking note of the communica- 
tion, not conceding the right to make such a blockade as 
that referred to in your communication, and reserving 
the consideration of all international rights and of any 
question which may affect the commerce or interests of 
the United States." 

1 Livre Jaime, Chine, 1885, p. 10. 


(c) The commander should request of the commander 
of the blockading forces that the merchant vessel of the 
United States be allowed to enter port K. If the request 
is denied he should make a protest, informing the com- 
mander of the blockading forces that the United States 
does not acknowledge the right of a force instituting a 
pacific blockade to interrupt the commerce of third 
powers not concerned, and that for damages the block- 
ading states would be held responsible. 

((/) And further, that in no case would the United 
States admit that a vessel entering port K would be 
liable to the severe penalties of violation of blockade. 

The United States commander could maintain the 
above positions on the ground that the authorities and 
practice alike justified his contention, and that it is now 
the general opinion— 

(1) That pacific blockade should be exclusively con- 
fined to those who are parties to it and should not be 
extended to third states. 

(2) That pacific blockade as a measure short of war 
does not involve any neutrality on the part of those not 
parties to it. 

(3) That pacific blockade should be limited as far as 
possible that it may not be confused with belligerent 
blockade, which is definitely outlined. 

L2 107 7 


States X and Y are at war. A port of X is duly declared 
under siege by the land forces of Y and all communica- 
tion with the port is declared closed, and all communica- 
tion except by sea is cut off. Y is not maintaining an 
effective blockade of the port. A United States mer- 
chant vessel carries in flour for the use of the citizens 
and sells it at the port, when departing is seen Just at 
the entrance of the port by a cruiser of Y, chased into 
the open sea, and there seized. 

The captain of the merchant vessel, when brought into 
port, requests the assistance of the commander of a war 
vessel of the United States in obtaining his release, 
referring to a telegram of the Navy Department in the 
Spanish war which contained among other items : ' ' Neu- 
trals have a right to trade with ports not proclaimed 

What action should the commander take, and why ? 


The commander of a United States war vessel should 
inform the captain of the merchant vessel that the state 
of actually existing siege of the port made the act of 
carrying supplies to the port of Y one which constituted 
a departure from neutral duty and rendered the merchant 
vessel liable to penalty. 

He could assure the captain that he would endeavor 
to make sure that he should have a fair trial. 



The Telegram. — The portion of the telegram to which 
reference is made is upon page 298 of Naval Operations 
of the "War with Spain, and is as follows : 

Washington, D. C, August 10, 1S9S. 
Howell, Naval Base, Key West, Fla. : 

Replying to the last three lines of your telegram of 
the 8th instant, it is considered best for a few days not 



to extend blockade beyond what has already been pro- 
claimed. Beyond these limits be very careful not to 
seize vessels, unless Spanish or carrying contraband -of 
war, as neutrals have right to trade with ports not pro- 
claimed blockaded. 

Allen, Acting Secretary. 

This telegram was not intended to enunciate a general 
principle but merely to give instructions on a particular 
case which arose under order to "station between Port 
Nipe and Nuevitas sufficient force to prevent any expe- 
dition reaching Holguin between these two points, and 
make other disposition of the force under your command 
that will blockade north coast of Cuba as far as it is possi- 
ble to do so with the force under your command." This 
telegram, as is shown in the full report, was not intended 
to apply to a state of siege, but merely to ordinary block- 
ade of the coast. 

In the " Situation " under consideration a siege is duly 
proclaimed and maintained by the forces of state Y. 
This siege is so effective that all communication with 
the port of state X, except by sea, is cut off. Under such 
circumstances it is held that the actions of neutrals are 
judged by the laws of siege rather than the laws of 

The nature of a siege. — The laying of a siege is a hos- 
tile act effecting directly the population of the place 
besieged. It is a portion of the military operations 
intended to reduce the enemy to submission by cutting 
off all communication other than that specifically allowed 
to the besieged or that allowed by custom, e. g., commu- 
nication by diplomatic agents with their own country. 

The act of the neutral vessel bringing flour is an act 
that would directly tend to prolong the siege and make 
the achievement of the military end more difficult. 

This is not simply an ordinary act of commerce. 

"As a general principle, subjects of a neutral state 
may carry on commerce in the time of war as in the time 
of peace. At the same time, owing to the fact of war, a 
belligerent has the right to take measures to reduce his 
opponent to subjection. The general right of the neu- 
tral and the special right of the belligerent come into 


opposition. The problem becomes one of 'taking into 
consideration the respective rights of the belligerents 
and of the neutrals ; rights of the belligerents to place 
their opponent beyond the power of resistance, but 
respecting the liberty and independence of the neutral 
in doing this; rights of the neutral to maintain with 
each of the belligerents free commercial relations, with- 
out injury to the opponent of either.'" ' 

Grotius 2 says, in speaking of what we call conditional 
contraband in such cases : 

"The state of the war is to be considered. For if I 
can not defend myself except by intercepting what is 
sent, necessity, as elsewhere explained, gives us a right 
to intercept it, but under the obligation of restitution, 
except there be cause to the contrary. If the supplies 
sent impede the exaction of my rights, and if he who 
sends them may know this — as if I were besieging a 
town, or blockading a port, and if surrender or peace 
were expected — he will be bound to me for damages, as 
a person would who liberates a debtor from prison, or 
assists his flight to my injury; and to the extent of the 
damage, his property may be taken and ownership 
thereof be assumed for the sake of recovering my debt. 
If he has not yet caused damage, but has tried to cause 
it, I shall have a right by the retention of his property 
to compel him to give security for the future, by 
hostages, pledges, or in some other way." 

Bynkershoek, 3 while maintaining the position of Gro- 
tius, is more explicit in making a general denial of 
approach to assist in any way a besieged place. 

Vattel 4 says: 

"All commerce with a besieged town is absolutely 
prohibited. If I lay siege to a place, or even simply 
blockade it, I have a right to hinder anyone from enter- 
ing, and to treat as an enemy whoever attempts to enter 
the place to carry anything to the besieged without my 

'Wilson & Tucker, Int. Law, p. 299, sec. 130. 

2 De Jure Belli ac Pacis, lib. Ill, cap. I, Sec. 5, 3 Whewell's ed. 

3 Quaestionum Juris Publici, Lib. I, Cax>. IV et XI. 

4 Law of Nations, Bk. Ill, sec. 117. 


leave; for he opposes my undertaking, and may con- 
tribute to the miscarriage of it, and thus involve me in 
all the misfortunes of an unsuccessful war." 

Duer 1 maintains that, in general, the purpose of a 
blockade is to reduce the enemy by intercepting com- 
merce, implying no act of direct hostility against the 
inhabitants of the place itself for the purpose of compel- 
ling surrender. The object of the siege, on the other 
hand, is to compel the place to capitulate or to reduce it 
by such means as may be within the power of the be- 
siegers. The purpose is to use force to attain the object. 

" It does not follow from this rule (in regard to effects 
of commercial blockade) that, when a port is besieged 
by land but not blockaded by sea, the trade might be 
lawfully carried on by sea. This would be an infringe- 
ment on the belligerent's right of siege. The primary 
object of a siege being the reduction of the besieged place, 
all communication of neutrals with such a place, whether 
by water or by land, is a violation of neutrality." 2 

"The aim of a siege is the capture of a strong place or 
town beset. The aim of a blockade is to put stress on 
the population of a port or on the population behind it 
through denying it communication, commercial or other- 
wise, with the rest of the world accessible to it only by 
sea." 3 

"The general right possessed by a belligerent of re- 
straining commercial acts done by private persons, which 
materially obstruct the conduct of hostilities, gives rise 
to several distinct groups of usage corresponding to dif- 
ferent commercial relations between neutrals and the 
other belligerents. 

"All trade divides itself into two great heads. It 
consists either in the purchase or sale of goods, or in 
carrying them for hire from one place to another. The 
purchase of goods by a neutral is the subject of no bel- 
ligerent restriction. The general principle that a neu- 
tral has a right to trade with his belligerent friend 
necessarily covers a commerce by which the war can in 

1 On Insurance, I, lect. 7, sec. 32. 

-Ferguson, Manual of Int. Law, II, p. 480, sees. 271, 272. 

3 Maine, Int. Law, p. 108. 


no case be directly affected. The belligerent gains noth- 
ing else than his mercantile profit, and to forbid such 
trade wonld therefore be to forbid all trade. But by the 
sale of goods the neutral may provide his customer with 
articles which, either by their own nature or from some 
peculiar need on the part of the belligerent, may be of 
special use in the conduct of hostilities. These, there- 
fore, the enemy of the latter may intercept on their road 
after leaving neutral soil, and before sale to a belliger- 
ent purchaser has transformed them into goods liable to 
seizure as enemy property. Again, under the second 
head, a neutral may send articles innocent in themselves 
for sale in places access to which the belligerent thinks 
it necessary for the successful issue of his war to forbid 
altogether, and which he is allowed to bar by so placing 
an armed force as to make the approach dangerous ; or 
the neutral may employ his ships in effecting a trans- 
port illicit because of the character of the merchandise 
or of the place to which it is taken : or finally he may 
associate his property with that of the belligerent in 
such manner as to show the existence of a community of 
interest, or an intention of using his neutral character 
to protect his friend. The effect of the various acts 
which fall under these heads differs with the degree of 
noxiousness which is attributed to them; but in all 
cases, as the possession of a right carries with it the 
further right to use the means necessary for its enforce- 
ment, the belligerent is allowed to inflict penalties of 
sufficient severity to be deterrent. 

"The larger bodies of practice which have asserted 
themselves successfully with reference to these divisions 
may on the whole be explained by the more or less rea- 
sonable application of the principle that a belligerent 
has the right to carry on his operations without obstruc- 
tion. It is easy to see the relation to this principle of 
the prohibition to carry goods the supply of which may 
increase the strength of a belligerent, and of that to 
carry any goods to besieged places." 1 

"The word blockade properly denotes obstructing the 
passage into or from a place on either element, but is 

1 Hall. Int. Law. 4th ed.. p. 656. sec. '232. 


more especially applied to naval forces preventing com- 
munication by water. Unlike siege, it implies no inten- 
tion to get possession of the blockaded place. With 
blockades by land or ordinary sieges neutrals have usually 
little to do." 1 

" There is an important distinction between sieges and 
blockades. The former are, as a rule, undertaken with 
the object of capturing the place besieged, while the 
usual object of the latter is to cripple the resources of 
the enemy by intercepting his commerce with neutral 
states." 2 

Halleck 3 treats the matter of sieges very fully ; review- 
ing earlier writers he says : 

"Grotius considers the carrying of supplies to a be- 
sieged town or a blockaded port as an offense exceed- 
ingly aggravated and injurious ; both agree that a neutral 
so offending may be severely dealt with; Vattel says 
that he may be treated as a public enemy. The views 
of these distinguished founders of international law are 
fully concurred in by the opinions of modern publicists, 
and by the prize courts of all countries. The right of a 
belligerent to invest the places and ports of an enemy 
so as to entirely exclude the commerce (otherwise lawful) 
of neutrals during the continuance of the investment, 
to prevent exports as well as imports, and to cut off all 
communication of commerce with the blockaded place, 
is undoubted, and, however serious the grievance, it is 
one to which neutral governments and their subjects are 
bound to submit. But as this right of the belligerent 
is an exception to the general rights of neutrals, and 
bears with great severity upon their interests, its exer- 
cise is always watched with peculiar jealousy, in order 
to prevent its necessary evils from being aggravated 
by a lax construction of the laws which regulate its 
application. * * * 

" A siege is a military investment of a place, so as to 
intercept, or render dangerous, all communications be- 
tween the occupants and persons outside of the besieg- 
ing army ; and the place is said to be blockaded when 

'Woolsey, Int. Law, sec. 202. 2 Boyd's Wheaton, sec. 5106. 

3 Int. Law, 3d ed., Baker II, Chap. XXV. 


such communication, by water, is either entirely cut off 
or rendered dangerous by the presence of the blockading 
squadron. A place may be both besieged and blockaded 
at the same time, or its communications by water may 
be intercepted, while those by land may be left open, 
and vice versa. Both are instituted by the rights of 
war, and for the purpose of injuring the enemy, and 
both impose upon neutrals the duty of not interfering 
with the operations of the belligerents. But there is an 
important distinction, with respect to neutral commerce, 
between a maritime blockade and military siege. The 
object of a blockade is solely to distress the enemy, inter- 
cepting his commerce with neutral states. ' It does not, 
generally, look to the surrender or reduction of the 
blockaded port, nor does it necessarily imply the com- 
mission of hostilities against the inhabitants of the place. 
The object of a military siege is, on the other hand, to 
reduce the. place by capitulation, or otherwise, into the 
possession of the besiegers. It is by the direct applica- 
tion of force that this object is sought to be attained, and 
it is only by forcible resistance that it can be defeated. 
Hence, every besieged place is, for the time, a military 
post ; for even when it is not defended by the military 
garrison, its inhabitants are converted into soldiers by 
the necessity of self-defense. This distinction is not 
merely nominal, but, as will be shown hereafter, leads 
to important consequences in determining the rights of 
neutral commerce and in deciding questions of capture. 

"It might be inferred by parity of reasoning that, 
when a port is under a military siege, neutral commerce 
might still be lawfully carried on by sea, through chan- 
nels of communication which could not be obstructed 
by the forces of the besieging army. But such infer- 
ence would not be strictly correct, for the difference 
between a blockade and a siege, in their character and 
object, have led to a difference in the rules applicable, 
in the two cases, to neutral commerce. Although the 
legal effects of a siege on land that is purely a military 
investment of a naval or commercial port may not be 
an entire prohibition of neutral commerce, yet it does 
not leave the ordinary communications by sea open 


and unrestricted, as a purely maritime blockade leaves 
the interior communications by land. The primary 
object of a blockade is, as we have already said, to pro- 
hibit commerce; but the primary object of a siege is the 
reduction of the place. All writers on international law 
impose upon neutrals the duty of not interfering with 
this object. To supply the inhabitants of the place be- 
sieged with anything required for immediate use, such 
as provisions and clothing, might be giving them aid to 
prolong their resistance. It is, therefore, a clear depart- 
ure from neutral duty to furnish supplies, even of pos- 
sible utility, to a port in a state of siege, although 
communication by sea may be open. It would be a 
direct interference in the war, tending to the relief of 
one belligerent and to the prejudice of the other; and 
such supplies are justly deemed contraband of war, to 
the same extent as if destined to the immediate use of 
the army or navy of the enemy. Hence, although the 
prohibition of neutral commerce with a port besieged be 
not entire, yet it will extend to all supplies of even 
possible utility in prolonging the siege." 

Conclusion. — It will be seen that the international 
law makes a vessel liable to punishment when aiding a 
besieged place by useful supplies. Such action is re- 
garded as "a clear departure from neutral duty." The 
action of the United States merchant vessel in carrying 
flour for the use of the citizens of the besieged place is 
clearly an act which is a "'departure from neutral duty." 

As, by the statement, the chase began at the entrance 
to the port and continued into the open sea, the vessel 
being guilty, capture was legal as a case of continuous 
pursuit begun within the jurisdiction of the pursuing 
party though continued on the high seas. The cruiser 
of state Y had full right to seize a guilty merchant 
vessel of the United States under the conditions given. 

The reference of the captain of the merchant vessel 
was to a telegram referring only to a state of blockade, 
when it is true that ''neutrals have right to trade with 
ports not proclaimed blockaded." This telegram is there- 
fore not applicable to the case under consideration. 

12107 8 


The commander of the United States war vessel should 
therefore inform the captain of the merchant vessel 
that the state of siege of the port of Y made the act of 
carrying supplies to the port of Y one which was a de- 
parture from neutral duty and one which rendered the 
merchant vessel liable to capture under the circum- 

He might assure the captain that he would endeavor 
to see that a fair trial should be given him. 



^^ ^«m— BOOB